Opinion
4:96cv149-C
November 7, 1996
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon the Motion to Dismiss and Motion for More Definite Statement filed by defendants Robert Sides, Jr. and the Town of Grover ("municipal defendants"); the Motion to Dismiss Under Federal Rules of Civil Procedure, and in the alternative, Motion for More Definite Statement filed by defendants Hull, Ellis, and Cochran ("individual defendants"); and plaintiffs' Motion for Extension of Time to Serve Defendants Paul A. Cash and Elizabeth Anne McCarter. Having considered those motions carefully and reviewed the pleadings, including plaintiffs' response, which has been deemed timely, the court enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. The Complaint and Parties
The factual allegations contained in the complaint are taken as true for the limited purpose of making a recommendation as to the pending motions and are summarized herein to aid further review. Plaintiffs are brother and sister living in the same household. The defendants can be defined in three distinct subclasses: municipal defendants; individual defendants, and yet-to-be served defendants.
As to the municipal defendants, plaintiffs contend that they violated protections secured to plaintiffs by the United States Constitution when town police officers effectuated plaintiffs' warrantless arrests for misdemeanors not occurring in the officers' presence through warrantless entry of the plaintiffs' home at night. These events, plaintiffs contend, occurred in the summer of 1993.
Plaintiffs further contend that the individual defendants, who are not themselves state actors, conspired with state actors Sides and Cash to commit tortious or, perhaps, criminal acts against them. It is not clear from the complaint whether plaintiffs are contending that the object of the conspiracy was to commit constitutional and/or common-law torts. Indeed, no specific constitutional rights are identified, and terms of art used indicate that plaintiffs may, in fact, be attempting to allege intentional torts, such as defamation, trespass to property, trespass to chattels, interference with contracts, and intentional infliction of emotional distress.
Finally, plaintiffs have attempted to sue, but have not served, the following persons: Paul A. Cash, Elizabeth Anne McCarter, and Charles Green. On October 22, 1996 (almost a month after the time for service had expired), plaintiffs moved for an extension of 120 days to serve defendants Cash and McCarter. As to the unserved defendants, the undersigned will recommend to the district court that the complaint be dismissed unless the court determines plaintiffs can show good cause why they have failed to either serve those defendants within the time provided by Rule 4, Federal Rules of Civil Procedure, or timely request an extension to do so. Fed.R.Civ.P. 6.
The claims for relief can best be summarized, as follows:
(1) First Claim for Relief: Gail Wilson's federal claims against defendants Sides and Cash for violation of the fourth, eighth, and fourteenth amendments, based on her alleged warrantless arrest and the warrantless entry into her home. Compensatory and punitive damages are sought.
(2) Second Claim for Relief: Gail Wilson's numerous supplemental state-law claims against defendants Sides and Cash for commission of numerous common-law torts, based on the same alleged facts as the First Claim for Relief. Compensatory and punitive damages are sought.
(3) Third Claim for Relief: Paul Wilson's federal claims against defendants Sides and Cash for violation of the fourth, eighth, and fourteenth amendments, based on his alleged warrantless arrest and warrantless entry into his home. (His claims differ from his sister's similar claims as to date of occurrence.) Compensatory and punitive damages are sought.
(4) Fourth Claim for Relief: Paul Wilson's numerous supplemental state-law claims against defendants Sides and Cash for commission of numerous common-law torts based on the same alleged facts as the Third Claim for Relief. (His claims differ from his sister's similar claims as to date of occurrence.) Compensatory and punitive damages are sought.
(5) Fifth Claim for Relief: Plaintiffs' federal claims against the Town of Grover (the Town) for violation of the fourth, eighth, and fourteenth amendments, based on a theory that the acts of defendant officers are imputed to the Town due to a lack of training in the proper use of authority. In their response to the Town's motion to dismiss, plaintiffs concede that they would not be entitled to punitive damages.
(6) Sixth Claim for Relief: Gail Wilson's claim against the individual defendants and defendants Sides and Cash for conspiracy to commit numerous tortious acts. As discussed briefly above, plaintiff does not specify whether those acts amount to federal constitutional torts.
(7) Seventh Claim for Relief: Paul Wilson's claim against the individual defendants and defendants Sides and Cash for conspiracy to commit numerous tortious acts. As discussed briefly above, plaintiff does not specify whether those acts amount to federal constitutional torts.
The undersigned notes at the outset that under the heading of single claims for relief, plaintiffs have attempted to assert numerous causes of action. For example, in the first claim for relief, Sandra Wilson attempts to assert claims under 42, United States Code, Section 1983, for violation of the fourth, eighth, and fourteenth amendments, which are distinct rights, all of which may be violated by the same conduct, but each of which has distinct elements. In the second claim for relief, she attempts to assert claims for the distinct torts of false arrest, false imprisonment, assault and battery, malicious prosecution, and intentional infliction of emotional distress. Although based on a separate transaction, Paul Wilson's claims in the third and fourth claims for relief mirror those asserted by Sandra Wilson. Counsel for plaintiffs is advised that Rule 8(a)(2), Federal Rules of Civil Procedure, requires a short and plain statement of the claim . . . ." The better practice is to allege in one paragraph, amounting to a factual statement, the offensive conduct, and, thereafter, assert separate claims for relief for each constitutional or common-law violation.
II. Motion to Dismiss
A. Applicable Standard
The municipal defendants and the individual defendants who have been served move for dismissal pursuant to Rule 12, Federal Rules of Civil Procedure. Rule 12 authorizes dismissal based on a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832(1989);Hishon v. King Spalding, 467 U.S. 69, 73(1984); Conley v. Gibson, 355 U.S. 41(1957). As the Court discussed in Neitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory . . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."Id. at 1832 (citation omitted). For the limited purpose of making a recommendation as to defendants' motions, the court has accepted as true the facts alleged by plaintiffs in their complaint and has viewed those allegations in a light most favorable to them.
B. Dismissal of the Town of Grover
1. Introduction
The thrust of this defendant's motion is that the Town should not be called upon to answer or otherwise defend against any of the claims asserted by plaintiffs. The Town contends that it is not liable for punitive damages either under Section 1983 or the common law of North Carolina and is not liable for compensatory damages under Section 1983 for the alleged constitutional wrongs of its employees. The Town, however, has failed to argue why dismissal would be appropriate on plaintiffs' commonlaw claims, coupled with the request for punitive damages.
2. Punitive Damages Against a Municipality Under Section 1983
The Town of Grover contends that it cannot be held liable for punitive damages stemming from the alleged constitutional infringements of its employees. Plaintiffs concede as much in their brief. A local governmental unit may not be held liable for punitive damages in Section 1983 actions. Newport v. Fact Concerts, Inc., 453 U.S. 247, 271(1981); see also Annotation, "Recovery of Exemplary or Punitive Damages from Municipal Corporation," 1 A.L.R. 4th 448 (1980 Supp. 1991). The undersigned will recommend that all claims against the Town of Grover for punitive damages based on Section 1983 be dismissed.
3. Punitive Damages Against a Municipality Under the Common Law of North Carolina
This court is bound by the decisions of the State of North Carolina in determining whether state law permits a party to seek punitive damages from a municipality for common-law liability. United Mine Workers of America v. Patton, 211 F.2d 742 (4th Cir.), cert. denied, 348 U.S. 824(1954). On the issue now before the court, the North Carolina Supreme Court has clearly spoken, as follows:
The common law and the overwhelming weight of modern authority have rejected the award of punitive damages against a municipal corporation. The general rule is that no punitive damages are allowed against a municipal corporation unless expressly authorized by statute.
* * *
Ordinarily it is the wrongdoer himself who is made to suffer for his conduct by the imposition of punitive damages — here it is the governmental entity itself. The retributive purpose is not significantly advanced, if it is advanced at all, by exposing municipalities to punitive damages.
With regard to the deterrent aspect, the Court noted that it is far from clear that municipal officials, including those at the policy making level, would be deterred from wrongdoing by the threat of large punitive awards against the wealth of their municipality and its taxpayers. This is particularly true in the absence of a law making indemnification available to the municipality. Likewise, there is no reason to suppose that corrective action such as discharge of the offending officials who were appointed or the removal of those who were elected will occur simply because punitive damages are awarded against the municipality.
We believe that public policy considerations mitigating against allowing assessment of punitive damages are compelling and are applicable to the actions of municipal corporations without regard to whether the function is governmental or proprietary. We hold that in the absence of statutory provisions to the contrary, municipal corporations are immune from punitive damages.Long v. City of Charlotte, 306 N.C. 187, 207-08(1982) (citations and footnote omitted). The undersigned, therefore, must recommend that any and all requests for punitive damages against the Town of Grover based on plaintiffs' common-law claims be dismissed.
4. Compensatory Damages Against the Town of Grover under Section 1983
A municipal corporation may be held liable under Section 1983 for the conduct of its employees in certain circumstances. The United States Supreme Court held, as follows:
[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.Monell v. Department of Social Servs., 436 U.S. 658, 694(1978),overruling in part Monroe v. Pape, 365 U.S. 167(1961). In order to state a claim under Section 1983 against a municipality for the acts of its employees, plaintiffs must allege that their constitutional injuries stemmed from a policy or custom established by the municipality. Plaintiffs contend that the Town of Grover is liable for the alleged constitutional infringements of its officers because it explicitly or implicitly authorized or approved the officers' conduct and/or failed to train its officers adequately.
Local governing bodies, such as municipal corporations, are "persons" that can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief when the alleged unconstitutional action executes governmental policy or custom. Monell v. Department of Social Servs., supra. Two elements are required to establish municipal liability: (1) whether plaintiffs' harm was caused by a constitutional violation; and (2) if so, whether the municipality is responsible for that violation. A municipality is responsible only when execution of a municipal policy or custom, whether made by its lawmakers or by those whose acts may fairly be said to represent official policy, inflicts injury. Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988). To avoid imposing vicarious municipal liability rejected by the Court in Monell, any theory of municipal liability must be controlled carefully at three critical points:
(1) identifying the specific policy or custom;
(2) fairly attributing the policy and fault for its creation to the municipality; and
(3) finding the necessary affirmative link between the identified policy or custom and the specific violation.Id., at 1389. Where the constitutional deprivation is not an official act of the municipality, the only recovery under Section 1983 lies against the officer in his individual capacity. Hughes v. Blankenship, 672 F.2d 403, 405-06 (4th Cir. 1982); Burt v. Abel, 585 F.2d 613, 617, n. 9 (4th Cir. 1978). In arguing that plaintiffs have failed to allege a Section 1983 claim against the Town of Grover, municipal defendants state that "[t]here is a heightened requirement of pleading § 1983 actions with particularity." The Supreme Court, however, has recently held that federal courts may not apply a heightened pleading standard to civil rights cases alleging municipal liability under Section 1983. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, ___ U.S. ___, 61 U.S.L.W. 4205(1993).
Reading the plaintiffs' pleading in a light most favorable to them, it appears that they contend that (1) the Town was deliberately indifferent to the training needs of its officers; (2) its indifference amounted to a policy or custom; and (3) as a direct result of that policy or custom, plaintiffs' constitutional rights were violated. It is clear that deliberate indifference on the part of a city to the need for training may amount to a city policy or custom. City of Canton v. Harris, 489 U.S. 378(1989); Clipper v. Takoma Park, 876 F.2d 17 (4th Cir. 1989). For the Town to be liable, the deficiency in training must have actually caused the officers' violation of plaintiffs' constitutional rights. City of Canton v. Harris, supra, at 391. By alleging that the Town failed to train its officers adequately, plaintiffs have stated a claim under Section 1983 against the municipality. Even if that allegation were not sufficient, plaintiffs have also alleged that the Town explicitly or implicitly authorized or approved the officers' conduct. A municipality may be held liable where unconstitutional practices are condoned; that is, where they are part of a developed custom or usage and there is
(1) actual or constructive knowledge of custom by policy makers; and
(2) failure as a matter of specific intent or deliberate indifference to correct the practice.Spell v. McDaniel, supra, at 1390-91.
For the limited purpose making a recommendation as to the motion to dismiss, the undersigned is compelled to review the complaint in a light most favorable to plaintiffs. Although plaintiffs' allegations as to municipal liability under Section 1983 are bare bones, there is no heightened pleading requirement under Section 1983. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, supra. The undersigned, therefore, must recommend that the Town of Grover's motion to dismiss plaintiffs' Section 1983 claim against it be denied.
5. Compensatory Damages Against a Municipality Under the Common Law of North Carolina
In their second and fourth claims for relief, plaintiffs specifically contend that the Town is liable for the torts of its employees and that compensatory damages should be imposed against it. Even though the Town has moved for dismissal of all claims, its has made no argument as to the claims for compensatory damages asserted against it in plaintiffs' second and fourth causes of action. Plaintiffs have alleged that the Town has waived its sovereign immunity to the extent it has secured liability insurance. The Town having failed to support its motion, and finding that a municipality can be held liable for the torts committed by its employees in the scope of their duties, the undersigned must recommend that the Town of Grover's motion to dismiss plaintiffs' request for compensatory damages based on common-law claims be denied.
C. Officer Sides
1. Introduction
The other municipal defendant, Defendant Sides, contends that the federal and state claims for punitive damages against him, both in his individual and official capacities, should be dismissed.
2. Section 1983 Claims
a. Official Capacity
It is established law that Section 1983 claims against governmental officials (such as police officers) in their official capacities are, in effect, actions against the governmental unit of which the officers are agents. Monell v. Department of Social Servs., supra,. at 690, n. 55. InBrandon v. Holt, 469 U.S. 464, 467-73(1985), the Supreme Court confirmed that Monell, supra, Newport, supra, and similar cases, establish the principle that punitive damages are not recoverable against local governmental officials sued in their official capacities. See also Angell v. Leslie, 832 F.2d 817 (4th Cir. 1987). To the extent plaintiffs seek to recover punitive damages from the individual municipal defendant sued in his official capacity, the undersigned will recommend that those claims be dismissed.
b. Individual Capacity
The claims for punitive damages under Section 1983 against the officer sued in his individual capacity must stand. Sued in his individual capacity, a defendant may be liable for punitive damages under either an intentional or reckless-disregard standard. The standard for punitive damages need not be higher than that for underlying liability. Smith v. Wade, 461 U.S. 30(1983). Clearly, the allegations of the complaint that this defendant "illegally, unlawfully, willingly, maliciously, and intentionally" deprived plaintiffs of rights protected by the Constitution are sufficient to satisfy the requirements of Smith. The undersigned must recommend that the officers motion to dismiss plaintiffs' claims for punitive damages against him in his individual capacity be denied.
3. Common-Law Claims
a. Official Capacity
As discussed above, a suit against an officer in his official capacity is a suit against the municipality. Monell v. Department of Social Servs., supra. As also discussed above, the North Carolina courts have clearly held that a municipality cannot be subjected to claims for punitive damages. Long v. City of Charlotte, supra. Sued in his official capacity, the request for punitive damages based on common-law claims against the officer must be dismissed.
b. Individual Capacities
Municipal officials sued in their individual capacities enjoy no immunity from punitive damages on state common-law claims. The officer, however, asserts that plaintiffs have not satisfied the pleading requirements under North Carolina law in asserting common-law claims for punitive damages.
Sitting in diversity, a federal court must look to the law of the forum state in determining substantive issues. Erie Railroad Co. v. Tompkins, 304 U.S. 64(1938). In Butt v. Goforth Properties, Inc., 95 N.C. App. 615(1989), the North Carolina Court of Appeals held, as follows:
The established law in North Carolina regarding the recovery of punitive damages in tort actions is that "the tortious conduct must be accompanied by or partake of some element of aggravation before punitive damages will be allowed" . . . . When the underlying action is grounded in negligence, punitive damages may be recovered where the negligence is gross or wanton. "Conduct is wanton when in conscious and intentional disregard of or indifference to the rights and safety of others."Id., at 618 (citing Paris v. Kreitz, 75 N.C. App. 365, 373-74, review denied, 315 N.C. 185(1985)). On a motion to dismiss, the issue is whether plaintiffs have alleged that defendants acted in conscious and intentional disregard of or indifference to the rights and safety of others. Butt v. Goforth Properties. Inc., supra. Plaintiffs contend in their complaint that Officer Sides's conduct indicated either a malicious intent or a reckless, careless regard or indifference to plaintiffs' constitutional rights. That allegation is sufficient to assert a claim for punitive damages. The undersigned must recommend that Defendant Sides's motion to dismiss plaintiffs' common-law claims for punitive damages asserted against him in his individual capacity be denied.
IV. Conspiracy Claims
The municipal and individual defendants move to dismiss both conspiracy claims, contending that those claims are merely state-law claims not implicating Section 1983. The court agrees that (1) the claims do not clearly assert any federal claim (however, the presence of a federal claim is not necessary to invoke the supplemental jurisdiction of this court) and (2) plaintiffs have failed to specify any dates or specific acts which would allow these defendants to assert any defenses they may have and prepare to defend against the conspiracy claims.
Plaintiffs' federal claims against the municipal defendants are based on distinct events which allegedly occurred on dates certain. If plaintiffs can tie the conspiracy alleged in their sixth and seventh claims for relief to the alleged federal deprivations contained in their preceding claims, it would be appropriate for this court to exercise supplemental jurisdiction over the conspiracy claims. To tie the claims together, plaintiffs must allege a common nucleus of operative facts and allege specific events and dates. If such direct link cannot be made, plaintiffs should take a voluntary dismissal of their conspiracy claims. The undersigned, therefore, will recommend that the motions to dismiss the conspiracy claims be denied without prejudice and that plaintiffs be compelled to provide a more definite statement as to their sixth and seventh causes of action.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) the municipal defendants' motion to dismiss be ALLOWED in part and DENIED in part, as follows:
(a) defendants' motion to dismiss all claims against the Town of Grover for punitive damages based on Section 1983 be GRANTED;
(b) defendants' motion to dismiss any and all requests for punitive damages against the Town of Grover based on plaintiffs' commonlaw claims be GRANTED;
(c) defendants' motion to dismiss plaintiffs' Section 1983 claim against the Town of Grover be DENIED;
(d) defendants' motion to dismiss plaintiffs' common-law request for compensatory damages against the Town of Grover be DENIED;
(e) defendants' motion to dismiss plaintiffs' claims for punitive damages against the individual defendants sued in their official capacities under Section 1983 be GRANTED;
(f) defendants' motion to dismiss plaintiffs' claims for punitive damages against the individual defendants sued in their individual capacities under Section 1983 be DENIED;
(g) defendants' motion to dismiss plaintiffs' claims for punitive damages against the individual defendants sued in their official capacities under the common law of North Carolina be GRANTED;
(h) defendants' motion to dismiss plaintiffs' claims for punitive damages against the individual defendants sued in their individual capacities under the common law of North Carolina be DENIED;
(i) defendants' motion to dismiss plaintiffs' sixth and seventh causes of action be DENIED without prejudice, that the alternative motion for more definite statement be GRANTED, and that plaintiffs be required to provide a more definite statement as to their sixth and seventh claims for relief;
(2) the individual defendants' motion to dismiss be DENIED without prejudice, that the alternative motion for more definite statement be GRANTED, and that plaintiffs be required to provide a more definite statement as to their sixth and seventh claims for relief; and
(3) plaintiffs SHOW CAUSE within the time allowed for objections why they have failed to either serve the remainder of the defendants within the time provided by Rule 4, Federal Rules of Civil Procedure, or timely request an extension under Rule 6.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to the municipal defendants' Motion to Dismiss and Motion for More Definite Statement (#7); the individual defendants' Motion to Dismiss Under Federal Rules of Civil Procedure, and in the Alternative, Motion for More Definite Statement (#6); plaintiffs' Motion for Extension of Time to Serve Defendants Paul A. Cash and Elizabeth Anne McCarter (#___).