Eller v. Kaufman et al
Filing
57
ORDER granting in part and denying in part 37 38 and 41 Motions to Dismiss and 43 Motion for Judgment on the Pleadings. See Order for Details. Signed by Magistrate Judge Dennis Howell on 07/24/2012. (thh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
2:11cv31
CHRISTOPHER D. ELLER,
Plaintiff,
v.
GARY KAUFMAN, et al.,
Defendants.
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ORDER
Pending before the Court are Defendants’ Motions to Dismiss [# 37, # 38, &
# 41] and Motion for Judgment on the Pleadings [# 43]. Plaintiff brought this
action against Defendants asserting a number of claims. Specifically, Amended
the Complaint asserts four federal claims pursuant to 42 U.S.C. § 1983, two claims
for battery under North Carolina law, and two respondeat superior claims. The
claims all arise out of the alleged denial of medical care for Plaintiff while he was a
pre-trial detainee and his alleged mistreatment while in custody. Defendants move
to dismiss on various grounds. The Court GRANTS in part and DENIES in the
part the Defendants’ motions.
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I.
Background
A.
The Acts Giving Rise to the Claims Asserted in the Amended
Complaint
On June 29, 2008, Plaintiff was arrested in North Carolina on drug related
charges. (Pl.’s Am. Compl. ¶ 15.) Plaintiff was held at the Cherokee County
Detention Center in Murphy, North Carolina (the “Detention Center”), while
awaiting trial on these charges. (Id. ¶¶ 4, 15.) During the first week of his
incarceration, Plaintiff tripped over a plastic bin lid at the base of a shower stall
and lacerated his lower back. (Id. ¶ 16.) As a result of the laceration, Plaintiff
suffered localized pain and soreness in his lower back. (Id. ¶ 17.) After the pain
continued and Plaintiff’s condition progressively worsened, he submitted three
“Sick Call Slips” to the staff of the Detention Center. (Id. ¶ 18.) These documents
were provided by the Detention Center staff to inmates as a means of requesting
medical attention in writing. (Id.)
Plaintiff was eventually seen by Defendant Gary Kaufman, the medical
supervisor of the Detention Center and a physician’s assistant. (Id. ¶¶ 5, 19.)
During this visit, Plaintiff told Defendant Kaufman about his fall and the laceration
on his back. (Id. ¶ 19.) Plaintiff complained of pain, irritation, and itching. (Id.)
In addition, Plaintiff complained that he could feel heat emanating from the
laceration. (Id.) Defendant Kaufman, however, did not examine the laceration or
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request that Plaintiff remove his shirt, and he did not treat the laceration with any
medication. (Id. ¶¶ 20-21.)
Subsequently, Plaintiff’s condition deteriorated, and his pain intensified, his
physical strength declined, and he experienced frequent dizzy spells. (Id. ¶ 22.)
Plaintiff again requested medical care, but his requests were ignored. (Id.)
Although Plaintiff made numerous verbal requests for medical treatment, he was
not provided with a grievance form and was not informed that medical treatment
would be denied. (Id. ¶ 23.) Defendant Kaufman and the guards at the Detention
Center believed that Plaintiff was faking his injury. (Id. ¶ 24.)
Meanwhile, Plaintiff was rapidly losing weight, losing more than a third of
his body weight. (Id. ¶¶ 26, 31.) Plaintiff was also experiencing uncontrollable
diarrhea and became so weak that he could not stand, eat, use the toilet, or care for
himself. (Id. ¶¶ 26-27.) Because Plaintiff was too weak to use the toilet, he was
left in his cell lying in his own excrement for long periods of time. (Id. ¶ 27.) Two
unidentified guards with the Detention Center - Defendants John Doe # 1 and John
Doe # 2 - would enter Plaintiff’s cell and drag him around the cell floor in an
attempt to force Plaintiff to clean up his excrement, which resulted in Plaintiff
sustaining cuts and scars on his knees. (Id. ¶¶ 9-10, 28.) These two guards also
physically assaulted, threatened, verbally abused, and ridiculed Plaintiff. (Id. ¶
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29.) For example, they threatened Plaintiff with physical abuse and pepper spray
to force him to use the toilet and clean his cell. (Id. ¶ 30.)
Again Plaintiff requested medical treatment and care from a physician, but
his requests were ignored. (Id. ¶ 32.) Plaintiff also requested that he be taken to
the hospitable and provided with a wheelchair, but these requests were similarly
ignored. (Id. ¶ 33.) The Sheriff of Cherokee County, Defendant Keith Lovin,
personally came to see Plaintiff in his cell and witnessed Plaintiff’s physical
condition, but only told him “to get up and start eating or you are doing to die.”
(Id. ¶¶ 34-35.) Despite the fact that Plaintiff was in need of immediate medical
care, Defendant Lovin did not order medical treatment for Plaintiff and ignored
Plaintiff’s personal requests to him for medical care. (Id. ¶¶ 32, 35, 37.) Plaintiff
also contends that he made personal requests for medical care to Defendant Keith
Watkins, the supervisor of detention officers at the Detention Center, and
Defendant Joe Wood, the Chief Deputy of the Detention Center. (Id. 7-8, 32.)
Rather than transport Plaintiff to the hospital to receive medical care,
Defendant Lovin signed a Transfer Order on July 28, 2008, ordering Plaintiff’s
transfer to Central Prison in Raleigh because of Plaintiff’s perceived psychological
problems. (Id. ¶ 41.) The Transfer Order did not list physical illness as a reason
for the transfer. (Id.) In order to transfer Plaintiff to Central Prison, Defendants
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placed Plaintiff in the back seat of a service vehicle because Plaintiff was too weak
to walk to the car and enter the vehicle unassisted. (Id. ¶ 42.)
When the vehicle arrived at Central Prison in Raleigh, North Carolina, the
driver informed Defendant Jonathon Church, a detention officer at Central Prison,
and Defendant John Doe # 3, an unidentified detention officer at Central Prison,
that Plaintiff was unable to walk. (Id. ¶¶ 11-12, 43.) Defendants Church and Doe
# 3 then pulled Plaintiff from the vehicle face down onto the ground and placed
him in handcuffs and leg chains. (Id. ¶ 44.) As a result, Plaintiff suffered serious
injury to his back. (Id.) Subsequently, Defendants Church and Doe # 3 placed
Plaintiff in a wheelchair with no feet rests. (Id. ¶ 45.) Although Defendant Church
ordered Plaintiff to hold up his feet, Plaintiff was too weak to do so, and Defendant
Church proceeded to push the wheelchair over Plaintiff’s right foot, causing severe
injury to his second toe. (Id.)
Plaintiff was then placed in a solitary room. (Id. ¶ 46.) When Plaintiff
begged Defendants Church and Doe # 3 for medical attention, they sprayed him
with mace. (Id.) Guards at Central Prison then ordered him to remove his clothes.
(Id. ¶ 47.) When Plaintiff was physically unable to remove his clothes, the guards
placed Plaintiff on a table and shocked him with either a stun gun or some other
device. (Id.) At some point, Plaintiff’s clothes were removed, and the personnel
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at Central Prison noticed the infection on his back from where he had cut himself
when he fell in the shower. (Id. ¶ 48.) Central Prison personnel then called an
ambulance, and Plaintiff was immediately taken to Wake Medical and Health
Hospital (“Wake Medical”) in Raleigh, where he was placed in the Intensive Care
Unit. (Id.)
When Plaintiff was admitted to Wake Medical, he weighed less than 150
pounds. (Id. ¶ 59.) A month earlier, Plaintiff weighed 260 pounds. (Id.) The
infection that started on Plaintiff’s back where he cut himself, had spread
throughout his body, including his spine. (Id. ¶ 56.) The infection devastated
Plaintiff’s bone structure, impeding the sensory stimuli and motor impulses
throughout his body, kidneys, eyes, stomach, and brain. (Id.)
At Wake Medical, a MRI of Plaintiff’s lumbar spine showed that he had an
“extensive lumbar epidural abscess with diskitis and osteomyelitis.” (Id. ¶¶ 49,
51.) Plaintiff was placed on Vancomycin and an incision was made to drain the
abscess on July 30, 2008. (Id. ¶¶ 49, 52.) Drainage revealed a STAPH infection,
and he was treated with Vancomycin and Rifampin for forty-two days. (Id. ¶ 52.)
During this procedure, however, Plaintiff had respiratory failure and acute renal
failure. (Id. ¶ 54.) Plaintiff had two additional surgeries in August 2008 to place a
metal cage around his spine and have plates inserted to secure the spine. (Id. ¶ 55.)
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Eventually, Plaintiff’s condition stabilized, and he was moved to a private
room to begin a nutritional regimen and antibiotic treatment to rid himself of the
remaining STAPH infection. (Id. ¶ 58.) On August 21, 2008, Plaintiff was
discharged from the hospital and returned to Central Prison. (Id. ¶ 60.) Plaintiff,
however, has permanent complications from the infection and back injury, which
render him unable to walk or use his lower body. (Id. ¶¶ 61-2.) Subsequently,
Plaintiff brought this action against Defendants, asserting a number claims.
B.
The Legal Claims Asserted by Plaintiff in the Amended
Complaint
The Amended Complaint asserts a number of claims against Defendants.
Count One asserts a Section 1983 claim against Defendants Kaufman, Lovin,
Watkins, Wood, Doe # 1, and Doe # 2 for alleged deprivations of Plaintiff’s
constitutional rights under the Eighth Amendment to the United States
Constitution. Count Two asserts a Section 1983 claim against Defendant Lovin in
his official capacity for developing official policies and customs that exhibit a
deliberate indifference to the constitutional rights of inmates at the Detention
Center. Count Three asserts a Section 1983 conspiracy claims against Defendants
Kaufman, Lovin, Watkins, Wood, Doe # 1, and Doe # 2. Count Four asserts a
claim for battery under North Carolina law against Doe # 1 and Doe # 2. Count
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Five asserts a Section 1983 claim against Defendant Church and Doe # 3 for
alleged violations of Plaintiff’s rights under the Eighth Amendment. Count Six
asserts a state law battery claim against Defendants Church and Doe # 3. Finally,
Counts Seven and Eight assert respondeat superior claims against Defendants’
Lovin, the Cherokee Sheriff’s Department, and the North Carolina Department of
Corrections.
II.
Legal Standard
The central issue for resolving a Rule 12(b)(6) motion is whether the
complaint states a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d
186, 189 (4th Cir. 2009). In considering a defendant’s motion, the Court accepts
the allegations in the complaint as true and construes them in the light most
favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591
F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92. Although the Court
accepts well-pled facts as true, it is not required to accept “legal conclusions,
elements of a cause of action, and bare assertions devoid of further factual
enhancement . . . .” Consumeraffairs.com, 591 F.3d at 255; see also Giacomelli,
588 F.3d at 189.
The complaint need not contain “detailed factual allegations,” but must
contain sufficient factual allegations to suggest the required elements of a cause of
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action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 196465 (2007); see also Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555, 127 S. Ct. at 1965. Nor will mere labels and legal conclusions suffice. Id.
Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned,
the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
____, 129 S. Ct. 1937, 1949 (2009).
The complaint is required to contain “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974;
see also Consumeraffairs.com, 591 F.3d at 255. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. ____, 129 S. Ct. at 1949; see also Consumeraffairs.com, 591 F.3d at 255.
The mere possibility that the defendant acted unlawfully is not sufficient for a
claim to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256;
Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual allegations must
move a plaintiff’s claims from possible to plausible. Twombly, 550 U.S. at 570,
127 S. Ct. at 1974; Consumeraffairs.com, 591 F.3d at 256.
Courts review a motion for judgment on the pleadings brought pursuant to
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Rule 12(c) under the same standard as a motion to dismiss made pursuant to Rule
12(b). Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009); Burbach Broad. Co. of
Del. v. Elkins Radio Corp., 278 F.3d 401, 405-6 (4th Cir. 2002).
III.
Analysis
A.
The Motion to Dismiss Filed by Defendants Kaufman, Lovin,
Watkins, and Wood
1.
the motion for summary judgment is premature
Defendants Kaufman, Lovin, Watkins, and Wood (collectively the “Cherokee
County Defendants”) move to dismiss the Amended Complaint or, in the
alternative, move for summary judgment on Plaintiff’s claims. Specifically, the
Cherokee County Defendants contend that Plaintiff’s Section 1983 claims are
barred by the Prison Litigation Reform Act (“PLRA”) because Plaintiff failed to
exhaust the grievance procedures at the Detention Center prior to bringing this suit.
This argument, however, depends on numerous documents the Cherokee County
Defendants have attached to their motion. In short, these Defendants attempt to
convert their Motion to Dismiss into one for summary judgment.
The PLRA requires that a prisoner properly exhaust his or her administrative
remedies prior to filing a civil action challenging the conditions of confinement.
Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Exhaustion is not a
jurisdictional requirement but an affirmative defense. Id. Accordingly, a prisoner
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need not plead exhaustion to state a claim, nor does the prisoner bear the burden of
proving that he exhausted his administrative remedies. Id. Although the Fourth
Circuit has recognized that the Court may address exhaustion at the pleading stage
and dismiss a case where failure to exhaust is apparent from the face of the
complaint, Anderson v. XYZ Corr. Health Serv., Inc., 407 F.3d 674, 681-82 (4th
Cir. 2005), such is not the case here as Plaintiff’s failure to exhaust is not apparent
from the face of the Amended Complaint.
Finally, although the Court could convert Plaintiff’s Motion to Dismiss into
a summary judgment motion and allow Plaintiff the opportunity to produce
evidence in response to the evidence submitted by the Cherokee County
Defendants, the Court declines to do so at this stage of the proceedings. The Court
is reluctant to resolve a factual dispute such as this without providing Plaintiff at
least a limited opportunity to conduct discovery and present the Court with a more
complete record as to the issue of exhaustion. Accordingly, the Court DENIES
without prejudice the Cherokee County Defendants’ Motion to Dismiss [# 37] on
exhaustion grounds. The Cherokee County Defendants may reassert their motion as
a motion for summary judgment during discovery or after the close of discovery.
2.
the Cherokee County Defendants have not demonstrated that Count
Two fails to state a claim
Count Two of the Amended Complaint asserts a claim against Defendant
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Lovin in his official capacity for developing and maintaining policies or customs
that exhibit a deliberate indifference to the constitutional rights of inmates at the
Detention Center (Pl.’s Am. Compl. ¶ 82), having a policy or custom of failing to
exercise reasonable care in hiring officers at the Detention Center (Id. ¶ 83), and
inadequately training or supervising the officers at the Detention Center (Id. ¶ 84).
The Cherokee County Defendants move to dismiss Count Two for failure to state a
claim.
As a threshold matter, the official capacity claim against Defendant Lovin is
the same as a claim against the Cherokee County Sheriff’s Office. Kentucky v.
Graham, 473 U.S. 159, 165-6, 105 S. Ct. 3099, 3105 (1985); see also Gant v.
Whitaker, 203 F. Supp. 2d 503, 509 (M.D.N.C. 2002). “As long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is, in
all respects other than in name, to be treated as a suit against the entity.” Kentucky,
473 U.S. at 166, 105 S. Ct. at 3105.
In order to hold a local government such as the Cherokee County Sheriff’s
Office liable for a constitutional violation pursuant to Section 1983, a plaintiff must
demonstrate that the violation was caused by an official custom or policy of the
local governmental entity. Love-Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004);
Walker v. Prince George’s Cnty., MD, 575 F.3d 426, 431 (4th Cir. 2009). “[A]
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municipality cannot be held liable simply for employing a tortfeasor.” Riddick v.
Sch. Bd. of City of Portsmouth, 238 F.3d 518, 522 (4th Cir. 2000). As the United
States Court of Appeals for the Fourth Circuit explained in Riddick:
Because section 1983 was not designed to impose municipal liability
under the
doctrine of respondeat superior, the “official policy”
requirement was “intended to distinguish acts of the municipality from
acts of employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the municipality is
actually responsible.”
Riddick, 238 F.3d at 523 (quoting Pembaur v. City of Cincinnati 475 U.S. 469, 479,
106 S. Ct. 1292, (1986)); see also Spell v. McDaniel, 824 F.2d 1380, 1396-87 (4th
Cir. 1987).
The Fourth Circuit has identified four ways in which a local governmental
entity may be held liable based on a policy or custom:
(1) through an express policy, such as a written ordinance or regulation;
(2) through the decisions of a person with final policymaking authority;
(3) through an omission, such as a failure to properly train officers, that
“manifest [s] deliberate indifference to the rights of citizens”; or (4)
through a practice that is so “persistent and widespread” as to constitute
a “custom or usage with the force of law.”
Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164
F.3d 215, 217 (4th Cir. 1999); see also Harrison v. Chalmers, 551 F. Supp. 2d 432,
438 (M.D.N.C. 2008). The Cherokee County Defendants offer only the cursory
argument that the allegations in the Amended Complaint lack facial plausibility and
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contain only legal conclusions. The Cherokee County Defendants, however, fail to
address the pleading requirements of a proper claim against a local governmental
entity or address how the factual allegations in the Amended Complaint fail to
satisfy these requirement. For example, the Cherokee County Defendant do not
address whether Defendant Lovin is a final policymaker under Section 1983 and,
thus, whether the Cherokee County Defendants may be held liable for his decisions,
including the decision to transfer Plaintiff to Central Prison rather than to the
hospital (Pl.’s Am. Compl. ¶¶ 38-41) and the decision to deny Plaintiff’s request to
Defendant Lovin for medical care (Id. ¶¶ 32-35). See Flood v. Hardy, 868 F. Supp.
809, 812 (E.D.N.C. 1994); cf. Layman v. Alexander, 294 F. Supp. 2d 784, 793
(W.D.N.C. 2003) (Cogburn, Mag. J.) (explaining that because the complaint
contained no allegations that the sheriff personally participated in the decision not
to transport the plaintiff to the hospital or provide him further medical care, plaintiff
would have to rely on a supervisor liability claim). Instead, the Cherokee County
Defendants offer one page of argument devoid of any substantive legal argument.
Accordingly, the Court DENIES the Motion to Dismiss [# 37] as to Count Two.
3.
the Amended Complaint does not state a claim for a Section 1983
conspiracy
Count Three of the Amended Complaint asserts a Section 1983 conspiracy
claim against the Cherokee County Defendants. (Pl.’s Am. Compl. ¶ 89-95.) An
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essential element of a civil conspiracy claim under Section 1983 is that the
defendants acted “jointly in concert and that some overt act was done in furtherance
of the conspiracy which resulted in [Plaintiff’s] deprivation of a constitutional right
. . . .” Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996); see
also Ruttenberg v. Jones, 283 F. App’x 121, 131-2 (4th Cir. 2008) (unpublished);
Harrison v. Prince William Cnty. Police Dept., 640 F. Supp. 2d 688, 707 (E.D. Va.
2009); Davis v. Cnty. of Amherst, No. 6:07cv17, 2008 WL 591253 (W.D. Va.
2008). The Amended Complaint fails to include factual allegations supporting
these elements of a conspiracy claim. Rather, the Amended Complaint contains
only conclusory allegations of conspiracy.
In Ruttenberg, the Fourth Circuit affirmed the dismissal of a Section 1983
conspiracy claim where the plaintiffs failed to plead any facts supporting the
elements of a conspiracy. As the Fourth Circuit explained:
Under Twombly, Appellants were required to allege “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 127 S. Ct.
at 1974. This requires a “plausible suggestion of conspiracy,” Twombly,
127 S. Ct. at 1971, and Appellants needed to plead facts that would
“reasonably lead to the inference that Appellees positively or tacitly
came to a mutual understanding to try to accomplish a common and
unlawful plan,” Hinkle, 81 F.3d at 421. The complaint makes the bare,
conclusory allegation that the defendants conspired to violate his
constitutional rights and that the conspiracy culminated in the fabricated
testimony. No common purpose is alleged and nothing beyond
conclusory allegations of conspiracy are made. We therefore affirm the
dismissal of the § 1983 conspiracy claim.
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Ruttenberg, 283 F. App’x at 132. Similarly, the Section 1983 conspiracy claim
asserted by Plaintiff is subject to dismissal as Plaintiff has not alleged factual
allegations supporting the essential elements of conspiracy claim. Although
Plaintiff is correct that he need not present the Court with specific evidence
supporting his conspiracy claim (Pl.’s Resp. Cherokee County Defs.’ Mot. Dismiss
at p. 17), he must do more than make the bare, conclusory allegations of a
conspiracy contained in the Amended Complaint to survive a motion to dismiss.
Accordingly, the Court GRANTS the Motion to Dismiss [# 37] as to Count Three.
4.
the individual capacity claim against Defendant Lovin in Count Seven
is not subject to dismissal
Count Seven of the Amended Complaint asserts respondeat superior claims
against Defendant Lovin and the Cherokee Sheriff’s Department. (Pl.’s Am.
Compl. ¶¶ 115-20.) Defendant Lovin moves to dismiss Count Seven to the extent it
asserts a claim against him in his individual capacity. Defendant Lovin contends
that he can only be held responsible for the conduct of his employees in his official
capacity. Defendant Lovin does not move to dismiss the claim on any other
grounds.
As a threshold matter, it is unclear to the Court the scope and extent of Count
Seven because the Amended Complaint fails to specify whether the claim is brought
under North Carolina law or Section 1983. To the extent that Count Seven attempts
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to assert respondeat superior claims pursuant to Section 1983 against Defendant
Lovin in his official capacity and the Cherokee Sherif’s Department, such claims
would be subject to dismissal as there is no liability under Section 1983 based on a
theory of respondeat superior. Riddick, 238 F.3d at 523; Zepp v. Rehrmann, 79
F.3d 381, 385 (4th Cir. 1996); Dillard v. Fox, No. 2:08cv16, 2009 WL 88879
(W.D.N.C. Jan. 12, 2009) (Reidinger, J.). “Liability of local governments and their
officials sued in their official capacity under § 1983 cannot be based on respondeat
superior but arises only when city or county officials themselves, through an act
establishing a policy or custom, cause the constitutional violation.” Gordon v.
Kidd, 971 F.2d 1087, 1098 (4th Cir. 1992). Moreover, to the extent the claim is
based on an alleged policy or custom of the Sheriff’s Department, it is redundant of
Count Two. 1
Although supervisory officials such as Defendant Lovin may be held liable
in certain circumstances under Section 1983 where their subordinates inflict
constitutional injuries, such a claim is not premised on respondeat superior. Shaw
v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994); Slakan v. Porter, 737 F.2d 368, 372
(4th Cir. 1984). To establish such a claim, a Plaintiff must show:
that the supervisor had actual or constructive knowledge that his
1
Defendant is correct that such a claim would only be asserted against Defendant Lovin
in his official capacity.
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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.
Shaw, 13 F.3d at 799 (internal quotations omitted); see also Alston, 304 F. Supp. 2d
at 781. Based on the allegations in the Amended Complaint and Plaintiff’s
response to the Motion to Dismiss, it appears that Plaintiff was attempting to assert
a supervisory liability claim against Defendant Lovin (Pl.’s Am. Compl. ¶ 119), as
opposed to a respondeat superior claim that is not even cognizable under Section
1983. Such a claim would be asserted against Defendant Lovin in his individual
rather than his official capacity. See Lavender v. City of Roanoke Sheriff’s Office,
826 F. Supp. 2d 928, 935 (W.D. Va. 2011). Accordingly, the Court DENIES the
Motion to Dismiss [# 37] as to Count Seven to the extent it asserts a supervisor
liability claim pursuant to Section 1983.
The Court offers no opinion as to
whether the allegations in the Amended Complaint support such a claim because the
Cherokee County Defendants did not address this issue in their briefs.
B.
The Motion to Dismiss of Defendant Church
1.
the section 1983 claim against Defendant Church in his official
capacity is subject dismissal
Count Five of the Amended Complaint asserts a Section 1983 claim against
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Defendant Church in his individual and official capacities for alleged violations of
the Eighth Amendment. (Pl.’s Am. Compl. ¶¶ 11, 98-108.) Defendant Church,
however, is a detention officer with the North Carolina Department of Corrections,
and a suit for damages against a state official in his official capacity is actually a
suit against his office and, thus, the State. Will v. Michigan Dept. of State Police,
491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989); see also Ridpath v. Bd. of Governors
Marshall Univ., 447 F.3d 292, 307 n.13 (4th Cir. 2006) (holding that official
capacity Section 1983 claims against university administrators were duplicative of
claims against the university’s Board of Governors and subject to dismissal); LoveLane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (holding that official capacity
Section 1983 claims against school superintendent were duplicative of the claims
against the school board and subject to dismissal); Bright v. McCLure, 865 F.2d
623, 626 (4th Cir. 1989). 1
Moreover, to the extent that this claim is actually a claim for damages against
the State of North Carolina, the State is not a “person” within the meaning of
Section 1983 and, therefore, Plaintiff may not maintain a Section 1983 claim for
damages against Defendant Church in his official capacity. Will, 491 U.S. at 64-66,
1
Although Plaintiff may maintain an official capacity suit against a state official for
injunctive relief, see Bennett v. Reed, 534 F. Supp. 83, 85 (E.D.N.C. 1981), Plaintiff does not
seek injunctive relief against Defendant Church.
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109 S. Ct. at 2309; Ballenger, 352 F.3d at 844-5; Bennett, 534 F. Supp. at 85;
DeMurry v. N.C. Dep’t of Corr., 673 S.E.2d 374, 381; see also Austin v. N.C. Dep’t
of Corr., No. 3:11cv478, 2012 WL 81442, at *2 (W.D.N.C. Jan. 11, 2012) (Conrad,
C.J.); Floyd v. N.C. Dep’t of Corr., No. 1:11cv80, 2011 WL 1499669, at *1
(W.D.N.C. Apr. 19, 2011) (Conrad, C.J.); Glover v. Charlotte Corr. Ctr., No.
3:10cv523, 2010 WL 4718397, at *1 (W.D.N.C. Nov. 15, 2010) (Conrad, C.J.).
Rather, the proper means of asserting such a claims is against Defendant Church in
his individual capacity. Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358, 365 (1991).
Accordingly, the Court finds that the Section 1983 claims asserted against
Defendant Church in his official capacity are subject to dismissal, and the Court
GRANTS the Motion to Dismiss [# 41] as to the official capacity Section 1983
claims.
2.
the battery claim asserted against Defendant Church in his
official capacity is barred by doctrine of sovereign immunity
In Count Six, Plaintiff asserts a battery claim against Defendant Church
under North Carolina law in his individual and official capacities. (Id. ¶¶ 11, 109114.) Defendant Church moves to dismiss the battery claim brought against him in
his official capacity. As previously explained in the discussion of Plaintiff’s official
capacity Section 1983 claims, Plaintiff’s claim for battery against Defendant
Church in his official capacity is actually a claim against the State. See White v.
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Trew, 720 S.E.2d 713, 717-18 (N.C. Ct. App. 2011) (“If a defendant is sued in his
official capacity, the State is the actual party being sued and sovereign immunity
bars the claim.”); DeMurry, 673 S.E.2d at 380 (explaining that the State is the
actual defendant to a claim brought against a Department of Corrections employee
in his official capacity); Epps v. Duke Univ., Inc., 468 S.E.2d 846, 850 (N.C. Ct.
App. 1996) (“Therefore, an official capacity suit operates against the public entity
itself, as the public entity is ultimately financially responsible for the compensable
conduct of its officers.”).
The doctrine of sovereign or governmental immunity, however, generally
shields the state and its officials and agents from being sued in their official
capacity for torts committed during the course of performing a governmental
function. Toomer v. Garrett, 574 S.E.2d 76, 91 (N.C. Ct. App. 2002); DeMurry,
673 S.E.2d at 380; Epps, 468 S.E.2d at 851. Although the State may waive its
immunity by consenting to suit or through a statutory waiver, Epps, 468 S.E.2d at
851, the State has not done so for battery claims. Moreover, the State has not
consented to suit or otherwise waived its sovereign immunity by removing this case
to federal court because it had not already consented to suit in the state court prior
to removal. See Stewart v. N.C., 393 F.3d 484, 490 (4th Cir. 2005) (holding that
the state does not waive sovereign immunity by removing a Section 1983 action to
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federal court).
Finally, although it is well settled that North Carolina counties and
municipalities may waive their immunity through the purchase of liability
insurance, see Owen v. Haywood Cnty., 697 S.E.2d 357, 359 (N.C. Ct. App. 2010);
Phillips v. Gray, 592 S.E.2d 229, 232 (N.C. Ct. App. 2004); Houpe v. City of
Statesville, 497 S.E.2d 82, 87 (N.C. Ct. App. 1998), the Amended Complaint does
not allege that the Department of Corrections actually purchased liability insurance
that covered the alleged acts, 2 and Plaintiff has not pointed this Court to any legal
authority supporting his claim that a state agency may waive its immunity from suit
through the purchase of insurance. 3 Accordingly, the doctrine of sovereign
immunity bars the official capacity claim against Defendant Church, and the Court
GRANTS the Motion to Dismiss [# 41] as to the official capacity battery claim
contained in Count Six. 4
2
The Amended Complaint alleges that: “The NCDOC Defendants have waived
immunity to the extent that they have purchased liability insurance” (Pl.’s Am. Compl.¶ 114);
“The NCDOC has waived immunity to the extent that it has purchased liability insurance” (Id..¶
126), and “Defendants have waived immunity to the extend they have purchased liability
insurance” (Id. ¶ 65). The Amended Complaint, however, contains no factual allegation that the
Department of Corrections has purchased liability insurance.
3
Plaintiff relies on N.C. Gen. Stat. § 153A-435, which only applies to counties, not state
agencies such as the Department of Corrections.
4
Plaintiff’s argument that the claims should not be dismissed because Defendant
Church’s actions were malicious, corrupt, or outside the scope of his duties is misplaced as this
would establish a claim against Defendant Church in his individual not his official capacity. See
Epps, 468 S.E.2d at 851-52.
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C.
The Motion for Judgment on the Pleadings Filed by Defendant
Church
1.
Defendant Church’s motion based on the PLRA is premature
Like the Cherokee County Defendants, Defendant Church moves to dismiss
the Section 1983 claims for failure to exhaust administrative remedies under the
PLRA. The Court finds that resolution of this issue involves factual issues more
appropriate for resolution at the summary judgment stage. Accordingly, the Court
DENIES without prejudice the Motion for Judgment on the Pleadings [# 43]
based on the Prison Litigation Reform Act. Defendant Church may renew this
argument in a motion for summary judgment after the appropriate discovery.
2.
the individual capacity Section 1983 claims against Defendant Church
are subject to dismissal for failure to state a claim
Section 1983 itself does not create a federal right, and to a state claim under
Section 1983 a “plaintiff must allege that a particular statute or provision of the
United States Constitution has been violated which confers a right which Congress
intended to be enforceable by private cause of action.” Bio-Med. Applications of
N.C., Inc. v. Electronic Data Sys. Corp., 412 F. Supp. 2d 549, 552 (E.D.N.C. 2006);
see also Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S. Ct. 2268, 2276 (2002).
Here, the Amended Complaint asserts a Section 1983 claim based on Defendant
Church’s alleged violations of Plaintiff’s rights secured by the Eighth Amendment
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to the United States Constitution. (Pl.’s Am. Compl. ¶ 100.) Specifically, Plaintiff
contends that Defendant Church exercised deliberate indifference to serious medical
needs and used excessive force in violation of the Eighth Amendment. The
Amendment Complaint does not allege that any other federal statute or provision of
the United States Constitution has been violated.
The Eighth Amendment to the United States Constitution prohibits the
infliction of cruel and usual punishments.” U.S. Const. amend. VII. The Eighth
Amendment, however, only applies:
after the State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions.... [T]he State does not
acquire the power to punish with which the Eighth Amendment is
concerned until after it has secured a formal adjudication of guilt in
accordance with due process of law.
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 2983
(1983) (internal quotation and citation omitted). As the Amended Complaint makes
clear, at the time of the alleged incidents, no formal adjudication of guilt against
Plaintiff had occurred as he was awaiting trial at the time. (Pl.’s Am. Compl. ¶ 15.)
As a pre-trial detainee, the Eighth Amendment has no application to Plaintiff. See
City of Revere, 463 U.S. at 244, 103 S. Ct. at 2983; Spell, 824 F.2d at 1384 n.3;
Spell v. McDaniel, 591 F. Supp. 1090, 1101 (E.D.N.C. 1984). Rather, Plaintiff’s
claims are governed by the Due Process Clause. Id.; Hill v. Nicodemus, 979 F.2d
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987, 990 (4th Cir. 1992). Irrespective of whether such claims are addressed under
the same legal standard, a pre-trial detainee must first allege a violation under the
Due Process Clause in order to assert a Section 1983 in this Court. Because the
Amended Complaint only asserts a claim pursuant to the Eighth Amendment and
fails to allege that Defendant Church violated the Due Process Clause, the Court
finds that Count Five is subject to dismissal. The Court GRANTS the Motion for
Judgment on the Pleadings [# 43] as to Count Five and DISMISSES Count Five for
failure to state a claim. 5 In addition, the Court DISMISSES Count One, which
also asserts a Section 1983 claim based on the Eighth Amendment.
3.
the Amended Complaint states a claim for battery against Defendant
Church in his individual capacity
Under North Carolina law, a battery is the carrying out of an offer to show
violence to another through the infliction of a blow. Dickens v. Puryear, 276 S.E.2d
325, 330 (N.C. 1981); Glenn-Robinson v. Acker, 538 S.E.2d 601, 615 (N.C. Ct.
5
Plaintiff is represented by counsel in this matter; he is not proceeding pro se. It is
counsel who drafted the Amended Complaint and decided which claims to assert and against
whom to assert these claims. Based on a review of the Amended Complaint, it is clear that
counsel failed to undertake any sort of review of the applicable law prior to asserting the claims
in the Amended Complaint, as the Amended Complaint confuses individual and official capacity
claims, fails to sue the correct parties under Section 1983, fails to assert the proper legal claims,
asserts non-existent claims, and lumps multiple claims into single counts. It is not the role of
this Court to fix Plaintiff’s Amended Complaint in response to motions to dismiss. Plaintiff is
the master of his complaint and is bound by the decisions of his counsel as to which claims to
assert and against whom to assert them. Moreover, even after being put on notice of the
deficiencies of the Amended Complaint by Defendant Church’s Motion for Judgment on the
Pleadings, Plaintiff failed to move to amend; instead arguing only that the Amendment
Complaint states a claim for relief under the Eighth Amendment.
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App. 2000); Ormond v. Crampton, 191 S.E.2d 405, 410 (N.C. Ct. App. 1972). It is
undisputed that the Amended Complaint alleges that Defendant Church committed
a touching against Plaintiff’s will. Defendant Church, however, contends that any
such use of force or touching was not excessive under the circumstances.
North Carolina allows a law-enforcement officer to use reasonable force to
prevent the escape from custody, effect an arrest, or defend himself or a third person
from the use of physical force while attempting to effect an arrest or preventing an
escape. N.C. Gen. Stat. § 15A-401; Glen-Robinson, 538 S.E.2d at 615; Russ v.
Causey, 732 F. Supp. 2d 589, 605 (E.D.N.C. 2010). Accordingly, a civil action for
battery under the common law will only lie against a law enforcement officer who,
during the commission of an arrest or while preventing an escape, uses force that is
excessive under the circumstances. Glenn-Robinson, 538 S.E.2d at 615; Myrick v.
Cooley, 371 S.E.2d 492, 496 (N.C. Ct. App. 1988); Thomas v. Sellers, 542 S.E.2d
283, 315 (N.C. Ct. App. 2001). The alleged battery in this case, however, occurred
during the transportation of Plaintiff from one facility to another; Plaintiff was not
being arrested and was not attempting to escape from custody. Defendant Church
has not provided the Court with any legal authority addressing the application of
force in such a context. 6
6
Although Defendant Church argues that he is a law enforcement officer within the
meaning of this exception to a common law battery claim, the relevant question is whether the
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Even assuming that the same standard applies in this situation, and that
Plaintiff must eventually demonstrate that the use of force by Defendant Church
was excessive under the circumstances to assert a battery claim, the Amended
Complaint contains sufficient allegations that the level of force used by Defendant
Church was excessive. The Amended Complaint alleges that despite the fact that
the driver of the vehicle transporting Plaintiff informed Defendant Church that
Plaintiff was too weak to walk, Defendant Church pulled Plaintiff from the vehicle,
put him face down on the ground, placed him in handcuffs and leg chains, and then
pulled him up from the back by his handcuffs and ankle chains, injuring his back.
(Pl.’s Am. Compl. ¶ 44.) In addition, Defendant Church placed Plaintiff in a
wheelchair with no feet rests and proceeded to run over his foot with the wheelchair
when Plaintiff was unable to lift his feet on his own, causing severe injury to his
toe. (Id. ¶ 45.) Defendant Church then sprayed Plaintiff with mace when he asked
for medical attention. (Id. ¶ 46.) Such allegations are sufficient to state a claim for
battery against Defendant Church as the use of force was excessive under the
circumstances.
Moreover, Defendant Church’s contention that the claim is subject to
exception even applies in cases not involving an arrest or potential escape as the basis of the rule
discussed in the cases cited by Defendant Church is N.C. Gen. Stat. § 15A-401. Defendant
Church, however, has not provided the Court with any authority for the proposition that the same
exception applies when there is no arrest and no attempt to escape.
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dismissal because “Plaintiff has not come forward with any objective, affirmative
evidence that his alleged injuries from contact with either the handcuffs, ankle
chains, or wheelchair were the result of an intentional battery by Defendant
Church” (Def. Church’s Br. Supp. Mot. J. Pleadings at p. 18), demonstrates a failure
to understand the distinction between a motion to dismiss and/or motion for
judgement on the pleadings and a motion for summary judgment, as Plaintiff does
not need to come forward with affirmative evidence at the pleading stage. The case
relied upon by Defendant involves a plaintiff’s burden at summary judgment, not
the pleading stage. See e.g. Royster v. McKeon, No. 5:09-CT-3111-BO, 2011 WL
3606459, at *4 (E.D.N.C. Aug. 16, 2011) (granting motion for summary judgment
where plaintiff failed to come forward with evidence of unusual force).
Finally, Defendant Church’s reliance on public official immunity is equally
without merit, as that doctrine does not apply where the official acts maliciously,
corruptly, in bad faith, willfully, or deliberately. Epps., 468 S.E.2d at 851; Price v.
Davis, 512 S.E.2d 783, 787-88 (N.C. Ct. App. 1999). An officer acts with malice
where he violates “clearly established rights.” Bailey v. Kennedy, 349 F.3d 731,
742 (4th Cir. 2003). Accepting the allegations in the Amended Complaint as true,
Plaintiff has made a prima facie showing that Defendant Church’s conduct in
spraying Plaintiff with mace when he requested medical attention, throwing him
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face down on the ground, and running over his foot - all while Plaintiff was too
weak to move on his own - was done maliciously, in bad faith, willfully, or was
outside the scope of his authority. See Epps., 468 S.E.2d at 851-52. Accordingly,
Defendant Church may not rely on the doctrine of public official immunity at this
stage of the proceedings. The Court finds that Plaintiff has alleged sufficient facts
to state a battery claim against Defendant Church in his individual capacity, and the
Court DENIES Defendant Church’s Motion for Judgment on the Pleadings [# 43]
on as Count Six in Defendant Church’s individual capacity.
D.
The Motion to Dismiss by Defendant Department of Corrections
Plaintiff asserts a respondeat superior claim against Defendant Department of
Corrections in Count Eight. Although set forth as a single claim for relief, it
appears that Plaintiff was attempting to assert a number of different claims in Count
Eight. All of these claims, however, are subject to dismissal. First, as the Court
previously explained, the State is not a “person” within the meaning of Section
1983 and, therefore, Plaintiff may not maintain a Section 1983 claim for damages
against the Department of Corrections. Will, 491 U.S. at 64-66, 109 S. Ct. at 2309;
Ballenger, 352 F.3d at 844-5; Bennett, 534 F. Supp. at 85; DeMurry, 673 S.E.2d at
494; see also Austin, 2012 WL 81442, at *2; Floyd, 2011 WL 1499669, at *1;
Glover, 2010 WL 4718397, at *1. Second, Section 1983 does not provide for
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respondeat superior liability. Riddick, 238 F.3d at 523; Zepp, 79 F.3d at 385;
Dillard, 2009 WL 88879. And a supervisor liability claim under Section 1983 must
be asserted against the supervisor in his individual capacity, not against the
Department of Corrections. See Lavender, 826 F. Supp. 2d at 935; see also Shaw,
13 F.3d at 798 (discussing supervisor liability claims against an individual
supervisor under Section 1983); Slakan, 737 F.2d at 372 (same).
Third, to the extent Plaintiff is asserting state tort claims against Defendant
Department of Corrections, such claims are barred by the doctrine of sovereign
immunity. Guthrie, 299 S.E.2d at 534-5; Toomer, 574 S.E.2d at 91; DeMurry, 673
S.E.2d at 380; Epps, 468 S.E.2d at 851. As previously discussed, the State has not
waived its immunity for such tort claims. Finally, to the extent that Plaintiff seeks
to assert a claim based on the negligence of the employees of the Defendant
Department of Corrections, jurisdiction for such a claim rest with the North
Carolina Industrial Commission, not this Court. See N.C. Gen. Stat. § 143-291;
Guthrie, 299 S.E.2d at 536 (“Under the Tort Claims Act, jurisdiction is vested in the
Industrial Commission to hear claims against the State of North Carolina for
personal injuries sustained by any person as a result of the negligence of a State
employee while acting within the scope of his employment.”); Wood v. N.C. State
Univ., 556 S.E.2d 38, 42 (N.C. Ct. App. 2001). Accordingly, the court lacks
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subject matter jurisdiction over any negligence claims and they must be dismissed
without prejudice. Accordingly, the Court GRANTS the Motion to Dismiss [# 38]
filed by the Department of Corrections and DISMISSES Count Eight.
IV.
CONCLUSION
The Court GRANTS in part and DENIES in part the Motions to Dismiss
[# 37, # 38, & # 41] and Motion for Judgment on the Pleadings [# 43]. The Court
GRANTS the motions as to Count Three, Count Five, the official capacity claim
asserted in Count Six, and Count Eight. The Court DISMISSES Counts One,
Three, Five and Eight in their entireties and Count Six to the extent it asserts an
official capacity claim against Defendant Church.
Signed: July 24, 2012
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