Estate of Brandon Cox et al v. Sheriff of Henderson County et al

Filing 13

ORDER granting 7 MOTION to Dismiss and defendants "Sheriff of Henderson County" and "Henderson County Sheriff's Office" are dismissed. Dft Charles McDonald, named only in the body of the Complain t, is also dismissed, without prejudice. Plas are granted leave to file an Amended Complaint within 14 days as instructed herein, and amendments in conformity with such instructions shall relate back to the original date of filing. Signed by District Judge Max O. Cogburn, Jr on 10/7/2016. (kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:16-cv-00300-MOC-DLH
REBA RENEE COX
TONY COX,
Plaintiffs,
Vs.
SOUTHERN HEALTH PARTNERS, INC.
CHARLES S. MCDONALD
MICHELLE RUSSELL, SHERIFF OF
HENDERSON COUNTY,
HENDERSON COUNTY SHERIFF'S OFFICE
KAREN LACEY STEWART,
Defendants.

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ORDER

THIS MATTER is before the court on the Motion to Dismiss (#7) filed by defendants
“Sheriff of Henderson County,” “Henderson County Sheriff’s Office,” and Charles McDonald
(hereinafter, at times, “the county defendants.”). Despite being represented by counsel, plaintiffs
have not responded to the motion within the time allowed.
The court has, however, reviewed the substance of the brief supporting the motion and
concurs with the county defendants that plaintiffs’ have failed, as a matter of well settled law, to
properly name a county defendant capable of being sued.
First, the “Henderson County Sheriff’s Office” is not an entity capable of being sued under
North Carolina law. Parker v. Bladen County, 583 F.Supp.2d 736, 740 (E.D.N.C. 2008). The
defendant Henderson County Sheriff’s Office is dismissed.

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Second, the “Sheriff of Henderson County” is a title, not a person, and only persons in
being may be sued under North Carolina law. Coleman v. Cooper, 89 N.C.App. 188, 192 (1988).
As a lawsuit cannot be maintained against a title, the suit against “Sheriff of Henderson County”
is dismissed.
As to Charles McDonald, who is presently the Sheriff of Henderson County, North
Carolina, plaintiffs name Sheriff McDonald in the body of their Complaint, but have not included
Sheriff McDonald in the caption of their pleading as required under Rule 10(a), Federal Rules of
Civil Procedure. See Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D.Va. 1999). As failure
to include “Charles McDonald” in the caption of the Complaint makes the allegations against him
in the body of the complaint a nullity, National Commodity and barter Assoc. v. Gibbs, 886 F.2d
1240, 1245 (10th Cir. 1989), the claims against this defendant will be dismissed without prejudice.
Plaintiffs will be granted leave to file an amended complaint within 14 days of this Order properly
naming “Charles McDonald” in the caption of their amended complaint. Plaintiffs are advised
that such naming would typically be “Charles McDonald, in his official capacity as Sheriff of
Henderson County, North Carolina.” Plaintiffs are further advised that as the Complaint is now
written, there are no allegations that would justify bringing an individual capacity claim against
this defendant. See Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985).

ORDER
IT IS, THEREFORE, ORDERED that the county defendants’ Motion to Dismiss (#7) is
GRANTED, and defendants “Sheriff of Henderson County” and “Henderson County Sheriff’s
Office” are dismissed. Defendant Charles McDonald, named only in the body of the Complaint,

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is also dismissed, but such dismissal is without prejudice. Plaintiffs are granted leave to file an
Amended Complaint within 14 days as instructed herein, and amendments in conformity with such
instructions shall relate back to the original date of filing.

Signed: October 7, 2016

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