Brown v. Anson County et al

Filing 32

ORDER adopting 26 Memorandum and Recommendations.; granting in part and denying in part 19 Motion to Dismiss. The defendants shall file their answers within 14 days, and the parties shall therinafter conduct the Initial Pretrial Conference and submit a CIAC. Signed by District Judge Max O. Cogburn, Jr on 10/27/11. (gpb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:10cv565
FLOYD LEE BROWN,

)
)
Plaintiff,
)
)
Vs.
)
)
ROBERT LUTHER POPLIN, JR., in his
)
individual capacity; SHERIFF TOMMY
)
ALLEN, in his individual and official
)
capacities; SHERIFF JAMES SELLERS, in )
his individual and official capacities;
)
JOHN and JANE DOES 1-10, in their
)
individual capacities; and RICHARD and
)
ROBERTA ROES 1-10, in their individual )
capacities,
)
)
Defendants.
)
_______________________________
)

ORDER

THIS MATTER is before the court on timely Objections (#27) filed by plaintiff to
the Memorandum and Recommendation (#26) (hereinafter “M&R”) filed by Honorable
David S. Cayer, United States Magistrate Judge, which recommended that defendants
Tommy Allen’s, Robert Luther Poplin, Jr.’s, and James Sellers’s Motion to Dismiss (#19)
be granted in part and denied in part. Defendants filed no objections and Defendants Allen
and Sellers have filed a response to such objections, making the objections ripe for
consideration in accordance with Rule 72(b), Federal Rules of Civil Procedure.
FINDINGS AND CONCLUSIONS
I.

Factual Background
This action involves two tragedies. First, Kathryn Lynch, an elderly resident of Anson

County, North Carolina, was beaten to death in her home in 1993. Amended Complaint
(hereinafter “AC”), ¶ 45. Second, plaintiff, a profoundly mentally challenged individual,
-1-

was charged with such murder and, incompetent to proceed, was institutionalized at a
hospital facility for nearly 14 years before such charges were ultimately dismissed with
prejudice.
Plaintiff, through his guardian ad litem, has alleged misconduct in the investigation,
resulting in charges being lodged against him initially, and in the failure of law enforcement
to review the investigation, which he contends resulted in his continued hospitalization in the
ensuing years. Specifically, plaintiff has alleged that although a finding of probable cause
supported the initial charge, Defendant Poplin (formerly an investigator for the Anson
County Sheriff’s Department) initially caused to be presented to the District Attorney a false
confession procured by agents of the State Bureau of Investigation (hereinafter “SBI”),1 and
that he was complicit in destroying exculpatory evidence and in not investigating significant
leads that would have earlier cleared plaintiff as well as resulted in charging the actual culprit
or culprits. As to Defendants Allen and Sellers (who were the two elected sheriffs of Anson
County during the period of the investigation and plaintiff’s detention), plaintiff contends
that they failed to properly supervise Defendant Poplin 2 and his partner3 and that such
defendants had a duty to reinvestigate the offense and to make those findings manifest at the
multiple competency hearings that were held in the intervening 14 years. According to
plaintiff, the only evidence that supported the prosecution was a detailed confession he

1

North Carolina State Bureau of Investigation Agents Mark Isley ("Isley") and Bill
Lane ("Lane") assisted in investigating the Lynch murder and took the confession from plaintiff.
2

In 1997, Defendant Poplin and his partner were indicted in this court for taking
bribes to protect perpetrators of various crimes committed in Anson County. In 1998, Defendant
Poplin and his partner entered guilty pleas to those federal charges.
3

His partner, Bud Hutchinson, was also convicted in this court of public corruption
offenses, but is now deceased.
-2-

supposedly gave to SBI agents, a confession which mental health professionals later
concluded was beyond plaintiff’s capacity to provide.4
During those 14 years, plaintiff remained housed in the state’s mental hospital in
Raleigh in an attempt to restore competency. In 2003, after a psychiatrist found plaintiff
competent to proceed, the first degree murder and other charges against plaintiff were reinstituted by way of indictment.5 In 2004, a superior court judge found plaintiff was
ineligible for the death penalty based on his profound mental impairment and in 2006 found
that he was again incompetent to stand trial. After the District Attorney took another
dismissal with leave to refile in 2007, plaintiff was again returned to the state hospital;
however, a petition for issuance of a writ of habeas corpus was filed on behalf of plaintiff,
which was granted by the presiding superior court judge. On November 16, 2007, the
charges lodged against plaintiff were dismissed with prejudice.
II.

Plaintiff’s Claims
In his Amended Complaint, plaintiff has asserted the following federal and state

causes of action:
(1)

First Claim for Relief: Malicious prosecution and conspiracy against
Defendant Poplin in his individual capacity and Defendant Allen in his
official capacity;

(2)

Second Claim for Relief: Civil obstruction of justice and civil

4

As this court lacks jurisdiction under Section 1983 over the state, plaintiff is
pursuing civil claims against state authorities in the North Carolina General Court of Justice,
Superior Court Division in Brown v. Isley et. al, 10 CVS 12239 (Meck. Co. 2010). In that
action, plaintiff seeks damages based on the allegedly false confession taken by Agents Isley and
Lane.
5

When plaintiff was determined to be incompetent to proceed, the original charges
had been dismissed with leave.
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conspiracy against Defendants Poplin and Sellers in their individual
capacities and against Defendant Allen in his official and individual
capacity;
(3)

Third Claim for Relief: Negligence against Defendant Allen in his
official capacity;

(4)

Fourth Claim for Relief: North Carolina constitutional claim against
Defendants Poplin, Allen and Sellers in their official capacities;

(5)

Fifth Claim for Relief: Section 1983 claim for violation of the Fifth
and Fourteenth Amendment right to due process by Defendant Poplin
in his individual capacity;

(6)

Sixth Claim for Relief: Section 1983 claim alleging a denial of access
to the court under the First and Fourteenth Amendments against
Defendants Poplin, Sellers, and Allen in their individual capacities;

(7)

Seventh Claim for Relief: Section 1983 claim alleging an unreasonable
seizure in violation of the Fourth Amendment against Defendant Poplin
in his individual capacity;

(8)

Eighth Claim for Relief: Section 1983 claim alleging supervisory
liability against Defendants Allen and Sellers in their individual
capacities for the federal constitutional torts of their employees,
including Defendant Poplin; and

(9)

Ninth Claim for Relief: Section 1983 Monell claim against Allen in his
official capacity.

III.

Procedural History
Plaintiff filed this action on September 30, 2010, in the North Carolina General Court
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of Justice, Superior Court Division, for Mecklenburg County. On November 9, 2010,
defendants removed this action to this court based on federal question jurisdiction. After an
initial Motion to Dismiss (#6) was mooted by the filing of the Amended Complaint (#18),
the named defendants filed their second Motion to Dismiss (#19) on May 19, 2011, which
ripened for decision on July 18, 2011, with the filing of defendants’ Reply (#25). Judge
Cayer promptly considered the motion and entered his M&R (#26) on July 29, 2011.
Within the time provided in Rule 72(b), plaintiff filed his Objections (#27). Also in
a timely manner, Defendants Allen and Sellers filed their combined Response (#28) to those
objections. Defendant Poplin has filed no objections.
IV.

The Recommendations
In his M&R, Judge Cayer recommended that defendants’ second Motion to Dismiss

be granted in part and denied in part, as follows:
(1)

that plaintiff’s Second and Sixth Claims for Relief against Defendants Allen
and Sellers, sued in their individual capacities, be dismissed with prejudice;

(2)

that plaintiff’s Eighth Claim for Relief against Defendant Sellers in his
individual capacity be dismissed with prejudice;

(3)

that defendants’s Motion to Dismiss the Fourth Claim for Relief (a North
Carolina constitutional claim) be denied;

(4)

that defendant’s Motion to Dismiss the Sixth Claim, for Relief (a Section 1983
claim for denial of access to the courts) be denied; and

(5)

that defendant’s Motion to Dismiss any claims for damages from 1993-2007
for defendants’ alleged failure to come forward during plaintiff’s involuntary
commitment hearings, be denied.

M&R (#26), at p.13.
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V.

Objections
Plaintiff has objected to each recommendation outlined above in paragraphs (1) and

(2), contending as follows:
(1)

as to the recommendation that plaintiff's Second Claim for Relief (Civil
obstruction of justice and civil conspiracy) against Defendants Allen and
Sellers in their individual capacities, plaintiff argues that such recommendation
was in error as he has sufficiently pled such claim;

(2)

as to the recommendation that plaintiff's Eighth Claim for Relief (Section 1983
supervisory liability against Defendant Sellers in his individual capacity) be
dismissed with prejudice, plaintiff argues that plaintiff has alleged ample facts
in support of each of the three elements of a § 1983 supervisory liability claim
against such defendant in that capacity; and

(3)

as to the recommendation that the Sixth Claim for Relief (denial of access to
the courts) against Defendants Allen and Sellers, sued in their individual
capacities, be dismissed with prejudice, plaintiff argues that he has made
sufficient plausible allegations to survive dismissal under Rule 12(b)(6).

Defendants have not objected to the recommendations adverse to them, outlined above in
Part IV, Sections (3), (4), and (5) of this Order. The court has given careful consideration
to each of the recommendations outlined in Part IV, paragraphs (3), (4), and(5), and after
such independent review, finds that such recommendations are consistent with current case
law and well supported by the pleadings before the court.

As the recommendations

summarized in paragraphs (3), (4), & (5) above are neither clearly erroneous nor contrary to
law, the court accepts and affirms such recommendations.

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VI.

De Novo Review
The Federal Magistrate Act 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, 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 de novo
review of those portions of the recommendation objected to as well as a careful review of
the Judge Cayer’s M&R in its entirety.
VII.

Discussion
The court has carefully considered each objection raised by plaintiff by reviewing

each argument in light of plaintiff’s Amended Complaint as well as the recommendation of
Judge Cayer. After discussing the standard applicable to the motion being reviewed, the
court will discuss each objection seriatim.
A.

Standard Applicable to Rule 12(b)(6) Motions

Until recently, a complaint could not be dismissed under Rule 12(b)(6) unless it
appeared certain that plaintiff could prove no set of facts which would support its claim and
entitle it to relief. Neitzke v. Williams, 490 U.S. 319 (1989); Conley v. Gibson, 355 U.S. 41
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(1957). This “no set of facts” standard has been specifically abrogated by the Supreme Court
in recent decisions.
First, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court held that the
“no set of facts” standard first espoused in Conley, supra, 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 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 plaintiff must allege
facts in his or her 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 plaintiff must now plead sufficient facts to state a claim
for relief that is “plausible on its face.” Id., at 570 (emphasis added).
While the Court was clear in Twombly that Conley was no longer controlling, see
Twombly, 550 U.S. at 563, and Felman Production Inc. v. Bannai, 2007 WL 3244638, at *4
(S.D.W.Va. 2007), it again visited the Rule 12(b)(6) pleading standard in Ashcroft v. Iqbal,
___ U.S. ___, 129 S.Ct. 1937 (May 18, 2009). In Iqbal, the Court determined that Rule 8
“demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id.,
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S.Ct., at 1949. 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 complaint as true and
considers 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. While a plaintiff is not required to plead facts that constitute a prima
facie case in order to survive a motion to dismiss, see Swierkiewicz v. Sorema N.A., 534
U.S. 506, 510-15 (2002), "[f]actual allegations must be enough to raise a right to relief above
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the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. at 555.
B.

Plaintiff’s First Objection: Second Claim for Relief

Judge Cayer recommended that plaintiff's Second Claim for Relief (a state law civil
obstruction of justice and civil conspiracy claim) asserted against Defendants Allen and
Sellers in their individual capacities be dismissed for failure to state a claim as provided in
Rule 12(b)(6).6 In his objection, plaintiff argues that such recommendation was in error as
he sufficiently pled such claim. Review of the Amended Complaint reveals, however, that
the only allegations of any personal involvement in the alleged obstruction of justice and
civil conspiracy are conclusory allegations which will not support such a claim under current
case law.
Specifically, plaintiff has made no allegations that either Defendant Allen or Sellers
were actually involved in the investigation or had a legal duty to reinvestigate the case.
While one would hope that the head of a department would, in his official capacity, initiate
a systematic review of all criminal proceedings initiated by a detective who was later
convicted of a racketeering offense under 18, United States Code, Section 1962, plaintiff’s
allegation of a failure to reinvestigate is not sufficient to plausibly assert personal liability
for civil obstruction of justice and civil conspiracy under North Carolina law.
Plaintiff first argues that the claim against Defendant Allen in his individual capacity
should be allowed to proceed because Defendant Allen: (1) helped conceal the similarity of
the murder of Ms. Lynch with a prior assault on Ms. Lynch; and (2) ignored Defendant
Poplin’s and Deputy Hutchinson’s failure to compare plaintiff’s palm print against the
readable print from the murder weapon. Objections, at pp. 12-13. On their face, these

6

Defendants have conceded the existence of such claim against Defendant Allen in
his official capacity.
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contentions are conclusory as they do not allege the basis for the assertion, which, if any
basis existed, would be that Defendant Allen knew of the investigative deficiencies and failed
to act. In any event, such contentions would amount to misfeasance and cannot support
imposition of personal liability on a sheriff or a supervisory law enforcement official as they
concern supervisory activities.
Under the public officers' immunity doctrine, “ ‘a public official is [generally]
immune from personal [or individual] liability for mere negligence in the
performance of his duties, but he is not shielded from liability if his alleged
actions were corrupt or malicious or if he acted outside and beyond the scope
of his duties.’ ” Schlossberg v. Goins, 141N.C.App. 436, ----, 540 S.E.2d 49,
56 (2000) (quoting Slade v. Vernon, 110 N.C.App. 422, 428, 429 S.E.2d 744,
747 (1993)). In other words,
a public official sued individually is not liable for “mere
negligence”-because such negligence standing alone, is
insufficient to support the “piercing” ... of the cloak of official
immunity. Locus [ v. Fayetteville State University ], 102
N.C.App. [522,] 526, 402 S.E.2d [862,] 865 [1991]; Reid [ v.
Roberts ], 112 N.C.App. [222,] 224, 435 S.E.2d [116,] 119
[1993].
Epps v. Duke University, 122 N.C.App. 198, 207, 468 S.E.2d 846, 853 (1996)
(emphasis in original).
Willis v. Town of Beaufort, 143 N.C.App. 106, 112 (2001). While allegations that a public
official engaged in specific acts of malfeasance by actively “concealing” exculpatory
evidence would suffice, a conclusory allegation that a sheriff “helped conceal” through
neglect or incompetence is simply not enough as it fails to allege plausible facts that could
establish individual liability under North Carolina law. Review of plaintiff’s claim reveals
only that the sheriff “ignored” his detectives’ investigative errors. Plaintiff’s claim fairs no
better in alleging such defendant’s negligence in failing to maintain a secure and accountable
evidence room inasmuch as allegations of negligence or even shear incompetence are not
enough for a sheriff to be held personally liable. Id.
Plaintiff next argues that Defendant Allen should be held personally liable on his

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claim of obstruction and conspiracy based on Defendant Allen’s failure to come forward at
plaintiff’s annual commitment hearing to disclose to the adjudicator that plaintiff did not
confess to Ms. Lynch's murder. Again, while the court would hope that a diligent, proactive
public servant would do precisely what plaintiff suggests, plaintiff has failed to plausibly
allege that Defendant Allen or Sellers even knew that the confession was improperly
obtained, that such defendants received notice of the hearings, or that they had a recognized
legal duty to come forward. Put another way, plaintiff’s claim presupposes that a sheriff has
a duty to reinvestigate conclusions drawn by detectives and passed on by an independent
judicial officer, and then to report the results of that unilateral investigation to authorities at
a commitment hearing. Not only does such duty not exist under North Carolina law, as
Judge Cayer determined, North Carolina does not even require that the Sheriff or his deputies
be notified of periodic commitment hearings. See N.C.Gen.Stat. 122C-276(a). Even if
defendants were actually aware of the hearings, there are no plausible allegations that these
defendants had any knowledge to impart to the court.
Having conducted a de novo review, the court overrules the objection and reaffirms
the decision of Judge Cayer in its entirety as to such recommendation.
C.

Plaintiff’s Second Objection: Eighth Claim for Relief

Judge Cayer further recommended that plaintiff's Eighth Claim for Relief (a Section
1983 supervisory liability claim against Defendant Sellers in his individual capacity) be
dismissed with prejudice for failure to state a cognizable claim under Rule 12(b)(6). In his
objection to that recommendation, plaintiff argues that he alleged ample facts in support of
each of the three elements of an individual capacity Section 1983 supervisory liability claim.
Where a Section 1983 individual liability claim is based on an assertion of supervisory
liability, plaintiff must allege that defendant had either actual or constructive knowledge that
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his subordinates were engaged in conduct that posed a pervasive and unreasonable risk of
constitutional injury to plaintiff, that defendant’s response was inadequate, and that there
was a causal link between his inaction and the injury plaintiff sustained. Slakan v. Porter,
737 F.2d 368, 372-3 (4th Cir. 1984).
In conducting de novo review, the court has looked to the allegations of the Amended
Complaint, wherein plaintiff alleged that Defendant Sellers knew that the detectives were
involved in producing false police reports, that he had responsibility for overseeing criminal
investigations, and that he failed to reinvestigate the murder of Ms. Lynch even after the
detectives were indicted in this court and after he became aware of the wrongfully obtained
confession. Objections, pp. 17-18, 20. Even when those facts are taken as true for purposes
of Rule 12(b)(6), the facts alleged do not plausibly allege a personal capacity, supervisory
liability claim against Defendant Sellers because it is undisputed that Defendant Sellers was
not the sheriff during the murder investigation. While it is clear that Defendant Sellers was
sheriff when the investigating deputies were themselves indicted, probable cause for
plaintiff’s arrest had already been determined by a neutral and detached magistrate. Motion
to Dismiss, Ex. 1. Once a determination of probable cause has been made by a neutral and
detached magistrate, the continuing pretrial seizure of a criminal defendant is reasonable as
a matter of law:
the Fourth Amendment “requires that arrests be made based upon probable
cause and that a neutral and detached judicial officer evaluate probable cause
as a condition of significant pretrial restraint of liberty.” Id. at 436. Once a
pretrial seizure has been rendered reasonable by virtue of a probable cause
determination by a neutral and detached magistrate, the continuing pretrial
seizure of a criminal defendant-either by detention or by bond restrictions-is
reasonable. See id. Therefore, Officer Barker's failure to attempt to have the
criminal charges against Brooks dismissed after a determination of probable
cause had been made by a neutral detached magistrate did not render Brooks'
continuing pretrial seizure unreasonable under the Fourth Amendment.
Consequently, this claim does not allege the deprivation of any right
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guaranteed by the Fourth Amendment.
Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 184 (4 th Cir. 1996) (citing Taylor v.
Waters, 81 F.3d 429, 435-36 (4th Cir.1996); footnote omitted). Thus, supervisory liability
will not attach where, as here, the supervisor was not the supervisor at the time of the
allegedly deficient investigation and where continued detention was based on a probable
cause determination by a neutral and detached judicial official. Plaintiff can point to no legal
duty Defendant Sellers had to reopen the murder investigation. Indeed, there is not even an
allegation that the detectives indictment in this court was in any way related to plaintiff’s
case, such that Defendant Sellers should have been on notice that the charges against plaintiff
should have been reinvestigated. As the Court of Appeals for the Fourth Circuit has held,
[b]ecause supervisors “cannot be expected to promulgate rules and procedures
covering every conceivable occurrence,” and because they may be powerless
to prevent deliberate unlawful acts by subordinates, the courts have
appropriately required proof of multiple instances of misconduct before
permitting supervisory liability to attach.
Randall v. Prince George's County, Md., 302 F.3d 188, 207 (4 th Cir. 2002). Equally,
generalized allegations of criminality on the part of subordinates does not satisfy the pleading
requirement of “actual or constructive knowledge” such that supervisory liability can attach.
Id.
Finally, plaintiff has not plausibly alleged a causal link between the alleged inaction
of Defendant Sellers and the harm suffered by plaintiff. While plaintiff’s detention at a state
mental health facility continued well into Defendant Sellers’ service as sheriff, the injury
attributable by plaintiff to the acts of the detectives - - his allegedly false arrest - - occurred
long before Sellers became Sheriff. Underlying plaintiff’s claim is his theory that if
Defendant Sellers had been vigilant, he would have notified the District Attorney of the
missing evidence as well as the allegedly false and misleading confession secured by the
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SBI, who would have in turn dismissed the charges, thereby securing plaintiff’s earlier
release from the state mental hospital. Plaintiff need look no further than his own Amended
Complaint to comprehend how implausible such theory is, inasmuch as plaintiff repeatedly
alleges that the only evidence against him was his confession, Amended Complaint, at ¶¶ 3
& 153, which discounts the value of any report of missing evidence. Further, plaintiff alleges
that the District Attorney knew that evidence relating to this case was missing in 2003, yet
the District Attorney took no action to dismiss the case. Further, despite knowing of the
problems with the confession in early 2007, the District Attorney did not take immediate
action, and only dismissed the case with prejudice in late 2007. Thus, plaintiff’s assertion
is not plausible as it does not “fall within the range of reasonable probability and ...
amount[s] to speculation and conjecture” as to what might have happened. Byrd v. Hopson,
265 F.Supp.2d 594, 602 (W.D.N.C. 2003) (internal citations omitted).
D.

Plaintiff’s Fourth Objection: Sixth Claim for Relief

Judge Cayer also recommended that plaintiff’s Sixth Claim for Relief (a Section 1983
denial of access to the courts claim) against Defendants Allen and Sellers, sued in their
individual capacities, be dismissed in accordance with Rule 12(b)(6). Plaintiff argues that
he has made sufficient plausible allegations to survive dismissal under Rule 12(b)(6),
arguing, as follows:
[t]hrough their establishment of an official practice at the ACSD of grossly
deficient evidence maintenance procedures, Allen and Sellers are directly
responsible for the destruction of the physical evidence, and may be held
personally liable.
Objections, pp. 20-21.7 Plaintiff is attempting to impose respondeat superior liability on
7

To the extent plaintiff is proceeding on a theory that the negligent loss of
evidence violates due process, negligent as opposed to intentional conduct is not actionable in
section 1983 individual capacity actions. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88
L.Ed.2d 662 (1986).
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Defendants Allen and Sellers, which is not available under Section 1983.
For individual liability to attach, plaintiff must allege that each defendant acted
“personally in the deprivation of the plaintiff’s rights.” Wright v. Collins, 766 F.2d 841, 850
(4th Cir. 1985) (internal citations omitted). As to the lost evidence, the only allegations
contained in the record are that one of the detectives, Defendant Poplin, both collected and
lost evidence which plaintiff contends would have been exculpatory. Amended Complaint,

¶¶ 84-85 & 88.
Under Section 1983, liability is imposed on "any person who shall subject, or cause
to be subjected, any person . . . to the deprivation of any rights . . . ." Accordingly, the statute
requires a showing of personal fault, whether based upon the defendant's own conduct or
another's conduct in executing the defendant's policies or customs. See Monell v. New York
City Dep't of Social Servs., 436 U.S. 685 (1978); West v. Atkins, 815 F.2d 993, 996 (4th Cir.
1987), rev'd on other grounds, 487 U.S. 42 (1988) (no allegation of personal involvement
relevant to the claimed deprivation); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)
(in order for an individual defendant to be held liable pursuant to 42, United States Code,
Section 1983, it must be "affirmatively shown that the official charged acted personally in
the deprivation of the plaintiff's rights . . .") (quoting Bennett v. Gravelle, 323 F. Supp. 203,
214 (D. Md. 1971), aff'd, 451 F.2d 1011 (4th Cir. 1971)). Put another way, Section 1983
makes actionable the intentional deprivation of constitutional rights by those acting under
color of state law; it does not make actionable deprivations caused by mere negligence, as
the harm Section 1983 was intended to curtail was the deliberate deprivation of federal
statutory and constitutional rights. Negligence does not state deprivation of either substantive
or procedural due process. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon,

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474 U.S. 344 (1986), overruling in part Parratt v. Taylor, 451 U.S. 527 (1981); McIntyre v.
Portee, 784 F.2d 566 (4th Cir. 1986); Wadhams v. Procunier, 772 F.2d 75 (4th Cir. 1985)
(negligent deprivation of liberty by excessive incarceration not actionable).
The United States Supreme Court and the Court of Appeals for the Fourth Circuit
have repeatedly held that the doctrine of respondeat superior has no application in Section
1983 cases. Id.; Hughes v. Blankenship, 672 F.2d 403 (4th Cir. 1982). "Proving supervisory
liability is a difficult task in § 1983 cases." Hughes v. Halifax County School Bd., 855 F.2d
183, 186 (4th Cir. 1988) cert. denied, 109 S.Ct. 867 (1989). Supervisory liability under
Section 1983 cannot be established through the doctrine of respondeat superior. Monell v.
New York City Dep't of Social Serv’s, supra.; West v. Atkins, supra; Vinnedge v. Gibbs,
supra. In Vinnedge, the appellate court stated, as follows:
Liability will only lie where it is affirmatively shown that the official
charged acted personally in the deprivation of the plaintiff's rights. The
doctrine of Respondeat Superior has no application under this Section
[§ 1983].
Id., at 929 (quoting Bennett v. Gravelle, supra, at 214). See also Waller v. Hughes, No. SHC-90-153, slip op. at 10-11 (W.D.N.C. December 10, 1990) ("Absent an affirmative showing
that defendants acted personally to deprive plaintiff of a constitutional right, defendants
cannot be held liable for the acts of unnamed others because the doctrine of respondeat
superior is not applicable to a Section 1983 claim.").
Although respondeat superior does not apply, supervisory liability may be found in
Section 1983 actions if a plaintiff can demonstrate that the supervisory official's inaction
amounts to deliberate indifference to or tacit authorization of the unconstitutional actions of
that official’s subordinates. Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984), cert. denied, 470
U.S. 1035 (1985). A plaintiff can establish that an official's inaction reaches deliberate

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indifference by demonstrating "continued inaction in the face of documented widespread
abuses . . . ."

Id., at 373.

This burden, however, cannot ordinarily be satisfied by

highlighting a single incident, as plaintiff has done herein. Id. The plaintiff in the case at
hand fails to make the necessary showing to establish potential supervisory liability. His
allegations would not establish liability under the standard enunciated in Slakan, and he does
not show that either sheriff failed to act in the face of documented and widespread abuses or
tacitly allowed plaintiff's alleged deprivations to occur.
After independent review of such objection, the undersigned affirms and accepts the
recommendation of Judge Cayer.

ORDER
IT IS, THEREFORE, ORDERED that plaintiff’s Objections (#27) are
OVERRULED, the Memorandum and Recommendation (#26) of Judge Cayer is
ACCEPTED, and defendants Tommy Allen’s, Robert Luther Poplin, Jr.’s, and James
Sellers’s Motion to Dismiss (#19) is GRANTED in part and denied in part as follows:
(1)

that plaintiff’s Second and Sixth Claims for Relief against Defendants Allen
and Sellers, sued in their individual capacities, is dismissed with prejudice;

(2)

that plaintiff’s Eighth Claim for Relief against Defendant Sellers in his
individual capacity is dismissed with prejudice;

(3)

that defendants’s Motion to Dismiss the Fourth Claim for Relief (a North
Carolina constitutional claim) is denied;

(4)

that defendant’s Motion to Dismiss the Sixth Claim, for Relief (a Section 1983
claim for denial of access to the courts) is denied; and

(5)

that defendant’s Motion to Dismiss any claims for damages from 1993-2007
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for defendants’ alleged failure to come forward during plaintiff’s involuntary
commitment hearings, is denied.

IT IS FURTHER ORDERED that the defendants file their Answer(s) within 14
days, and that the parties thereinafter conduct the Initial Pretrial Conference and submit a
CIAC to Judge Cayer within the time specified by the Local Civil Rules. The parties are
instructed to thoroughly discuss at the IAC the possibility of early mediation.

Signed: October 27, 2011

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