McAdoo v. United States of America et al

Filing 64

ORDER affirming 58 first Memorandum and Recommendation and 59 second Memorandum and Recommendation; granting in part and denying in part 34 Motion to Substitute Party; granting 36 Motion to Amend/Correct Motion to Substitute Party; granting 4 County Defendants' Motion to Dismiss; and granting 16 government's Motion to Dismiss, all as provided in the magistrate judge's Memoranda and Recommendations. FURTHER ORDERED that plaintiff and defendant are directed to conduct an IAC and submit a CIAC and proposed PTO within the times provided by the Local Civil Rules. Signed by District Judge Max O. Cogburn, Jr. on 8/12/2015. (Pro se litigant served by US Mail.)(khm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:14-cv-00239-MOC-DLH
CARL E. MCADOO,
Plaintiff,
Vs.
UNITED STATES OF AMERICA
ERNEST T. AHL JR.
SONNY W. TUCKER, JR.
ANN PADGETT
SANDY F. PIERCE
JOYCE ANN NASH
RUTHERFORD COUNTY DEPARTMENT OF
SOCIAL SERVICES
JOHN CARROLL
VIC MARTIN,
Defendants.

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ORDER

THIS MATTER is before the court on review of a Memorandum and
Recommendation (#58), which recommends dismissal of all claims asserted against the
County Defendants (John Carroll, Ann Padgett, Vic Martin, Rutherford County
Department of Social Services) and a separate Memorandum and Recommendation (#59),
which recommends substitution of the United States of America as the real party in interest
for the nominal federal defendants named, and that the government’s Motion to Dismiss
be granted.
In the Memorandum and Recommendation, the magistrate judge advised the parties
of the right to file objections within 14 days, all in accordance with 28, United States Code,
Section 636(b)(1)(c). Plaintiff is proceeding pro se. Objections have been filed within the
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time allowed and Responses to those objections have also been filed.
The Federal Magistrates Act of 1979, as amended, provides that “a district court
shall make a de novo determination of those portions of the report or specific proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby
v. Davis, 718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may be
dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo
review is not required by the statute “when a party makes general or conclusory objections
that do not direct the court to a specific error in the magistrate judge’s proposed findings
and recommendations.” Id. Moreover, the statute does not on its face require any review
at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149
(1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for
the final determination and outcome of the case, and accordingly the court has conducted
a careful review of the magistrate judge’s recommendation.
In this case, the magistrate judge has recommended dismissal of plaintiff’s claims
under Rule 12(b)(6), Federal Rules of Civil Procedure. In determining whether a claim
can survive a motion under Rule 12(b)(6), the Supreme Court held in Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007) that the “no set of facts” standard only describes the
“breadth of opportunity to prove what an adequate complaint claims, not the minimum
adequate pleading to govern a complaint’s survival.” Id. at 563. The Court specifically
rejected use of the “no set of facts” standard because such standard would improperly allow
a “wholly conclusory statement of claim” to “survive a motion to dismiss whenever the
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pleadings left open the possibility that a plaintiff might later establish some ‘set of
[undisclosed] facts’ to support recovery.” Id. at 561 (alteration in original). Post Twombly,
to survive a Rule 12(b)(6) motion to dismiss, a claimant must allege facts in his complaint
that “raise a right to relief above the speculative level.” Id., at 555.
[A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do . . . .
Id. (second alteration in original; citation omitted). Further, a complaint will not survive
Rule 12(b)(6) review where it contains “naked assertion[s] devoid of further factual
enhancement.” Id., at 557. Instead, a claimant must plead sufficient facts to state a claim
for relief that is “plausible on its face.” Id. at 570 (emphasis added).
Post-Twombly, the Court revisited the Rule 12(b)(6) pleading standard in Ashcroft
v. Iqbal, 556 U.S. 662 (2009). In Iqbal, the Court determined that Rule 8 “demands more
than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. at 678. The
Court explained that, “to survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(citing Twombly, supra; emphasis added). What is plausible is defined by the Court:
[a] claim has facial plausibility when the plaintiff pleads sufficient factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Id. This “plausibility standard” requires “more than a sheer possibility that a defendant has
acted unlawfully.” Id. Thus, a complaint falls short of the plausibility standard where a
plaintiff pleads “facts that are ‘merely consistent with’ a defendant’s liability ....” Id.
While the court accepts plausible factual allegations made in a claim as true and considers
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those facts in the light most favorable to plaintiff in ruling on a motion to dismiss, a court
“need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.”
Eastern Shore Mkt.’s Inc. v. J.D. Assoc.’s, LLP, 213 F. 3d 175, 180 (4th Cir. 2000).
In sum, when ruling on a Rule 12(b)(6) motion, “a judge must accept as true all of
the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (citations omitted). A complaint “need only give the defendant fair
notice of what the claim is and the grounds upon which it rests.” Id. at 93 (alteration and
internal quotation marks omitted). However, to survive a motion to dismiss, the complaint
must “state[ ] a plausible claim for relief” that “permit[s] the court to infer more than the
mere possibility of misconduct” based upon “its judicial experience and common sense.”
Iqbal, 129 S. Ct. at 1950.
However, to survive a motion to dismiss, a plaintiff need not demonstrate that his
right to relief is probable or that alternative explanations are less likely; rather, he must
merely advance his claim “across the line from conceivable to plausible.” Twombly, 550
U.S. at 570. If his explanation is plausible, his complaint survives a motion to dismiss under
Rule 12(b)(6), regardless of whether there is a more plausible alternative explanation.
While the plaintiff has objected to both recommendations, review of those
objections shows that they are without merit as the magistrate judge’s recommendations
are clearly consistent with current law and were based on a fair reading of plaintiff’s pro
se Complaint.
As to the County Defendants’ Motion to Dismiss, plaintiff’s Section 1983 claims
and state-law claims against them are time barred, the statute of limitations was neither
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tolled nor extended by the prior dismissal in this court, and many of the claims were only
able to be asserted by the executor of plaintiff’s father’s estate, not plaintiff personally.
As to the Motion to Dismiss filed by the federal defendant(s), the magistrate judge
properly substituted the United States of America as the proper party in interest under the
Westfall Act and in so doing properly denied such motion as to Defendants Tucker and
Pierce as they had been named in a constitutional claim (Count Six). Further, the
magistrate judge properly concluded that Defendant Ahl should be dismissed entirely as
he was not named in Count Six. In addition, plaintiff’s tort claims against the United States
of America as the real party in interest are clearly time barred under the FTCA and there is
no basis for tolling those periods. This court’s earlier dismissal of plaintiff’s prior action
provided no basis for tolling. As to the Section 1983 claims asserted against Defendants
Tucker and Pierce – federal employees – Section 1983 provides plaintiff with no
cognizable cause of action as that provision is directed to state actors, not federal. See
District of Columbia v. Carter, 409 U.S. 418 (1973). Further, any such action would be
time barred and, to the extent the Section 1983 could be construed to be a claim under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the underlying factual
contentions alleged do not present a due process violation sufficient to support such a
claim.
After such careful review, the court determines that the recommendation of the
magistrate judge is fully consistent with and supported by current law. Further, the factual
background and recitation of issues is supported by a fair reading of the applicable
pleadings. Based on such determinations, the court will fully affirm the Memorandum and
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Recommendation and grant relief in accordance therewith.
ORDER
IT IS, THEREFORE, ORDERED that the plaintiff’s Objections (#s 60 & 61) are
OVERRULED, the first Memorandum and Recommendation (#58) and second
Memorandum and Recommendation (#59) are AFFIRMED, and
(1) the government’s Motion to Substitute Party (#34) is GRANTED in part and
DENIED in part as provided in the M&R;
(2) the government’s Motion to Amend/Correct Motion to Substitute Party (#36) is
GRANTED;
(3) the County Defendants’ Motion to Dismiss (#4) is GRANTED, and
(4) the government’s Motion to Dismiss (#16) is GRANTED,
all as provided in the magistrate judge’s Memoranda and Recommendations.
IT IS FURTHER ORDERED that as the issues have now joined as to plaintiff and
Defendant Nash (the only remaining defendant), those parties are directed to conduct an
IAC and submit a CIAC within the times provided by the Local Civil Rules. As plaintiff
is not represented, counsel for Defendant Nash is granted leave to submit a proposed PTO
without consulting with the unrepresented plaintiff. Similarly, plaintiff may also submit a
proposed PTO without consulting with Defendant Nash’s attorney. If Defendant Nash
intends to pursue the motions to dismiss contained in her Answer, she should review Local
Civil Rule 7.1(C)(1) for the applicable procedure.
Signed: August 12, 2015

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