Allen v. Coffey

DERRICK ALLEN, Plaintiff; v. OFFICER N. COFFEY, Defendant.

No. 5:20-CV-144-BO

United States District Court, E.D. North Carolina, Western Division

August 18, 2021

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

This cause comes before the Court on defendant's motion to dismiss for insufficient service of process and failure to state a claim and plaintiffs motions to amend the complaint and to appoint counsel. For the following reasons, plaintiffs motions are denied and defendant's motion is granted.

BACKGROUND

On September 14, 2019, defendant Officer N. Coffey, allegedly acting under the color of state law, pulled plaintiff Derrick Allen over on NC Highway 55 in Cary, North Carolina, and issued plaintiff a traffic citation for violating N.C. Gen Stat. §§ 20-63(g) and 129(g). Compl. at 4. Plaintiff alleges that he had not committed any traffic violations and that defendant "fabricated the charges" against him and "harassed" him. Id. at 4-5. The citation was voluntarily dismissed on June 8, 2020. DE 17-2 at 2.

Plaintiff filed this lawsuit in the Middle District of North Carolina on September 19, 2019, and it was transferred to this Court on April 7, 2020. DE 1, 9. Plaintiff named defendant Officer Coffey, the Town of Cary's Police Department, and Town of Cary Police Department Chief Toni Dezomits as defendants and brought claims pursuant to 42 U.S.C. § 1983. DE 2. On August 18, 2020, Magistrate Judge Kimberly A. Swank issued an Order and Memorandum & Recommendation (M&R) dismissing plaintiffs claims against the Police Department and Chief Dezomits as frivolous but allowing plaintiff to proceed in forma pauperis against defendant. DE 16. This Court adopted the M&R on September 22, 2020, and the order was upheld on appeal. DE 20, 35.

DISCUSSION

Motion to Appoint Counsel

Plaintiff has moved for appointment of counsel pursuant to 28 U.S.C § 1915(e)(1). There is no constitutional right to counsel in civil cases, and courts should exercise their discretion to appoint counsel for pro se civil litigants "only in exceptional cases." Cook v Bounds, 518 F.2d 779, 780 (4th Cir. 1975) (citation omitted). The existence of exceptional circumstances justifying appointment of counsel depends upon "the type and complexity of the case, and the abilities of the individuals bringing it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) abrogated on other grounds by Mallard v. U.S. Dist. Court for the S Dist. of Iowa, 490 U.S. 296 (1989). Plaintiff has previously moved for appointment of counsel, and that request was denied. DE 14, 16. Considering these factors, the Court finds that this case is not one in which exceptional circumstances merit appointment of counsel. Therefore, plaintiffs motion to appoint counsel is denied.

Motion to Dismiss

Defendant has moved to dismiss the case pursuant to Rules 12(b)(5) and 12(b)(6) for insufficient service of process and for failure to state a claim upon which relief may be granted. A motion made pursuant to Rule 12(b)(5) challenges the mode of delivery or the lack of delivery of the summons and complaint. 5B Wright & Miller, Federal Practice and Procedure: Civil 3d § 1353. When a plaintiff has brought claims against defendant in both his individual and official capacities, he must serve him in both capacities. See Richardson v. Roberts, 355 F.Supp.3d 367, 370 (E.D. N.C. 2019). A suit against a government employee in his official capacity is, ostensibly, an additional attempt to assert a claim against his employer. Kentucky v Graham, 473 U.S. 159, 165 (1985) ("Official-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent."') (quoting Monell v. N. Y.C. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55).

Service against a defendant in his official capacity is, "in all respects other than name, to be treated as a suit against the entity," and the government entity must receive notice and an opportunity to respond. Williams v. Guilford Tech Cmty. Coll. Bd. of Trs., 117 F.Supp.3d 708, 715 (M.D. N.C. 2015) (quoting Graham, 473 U.S. at 167 (1985)); see also Burke v. Hill, No. 2:17-CV-1-FL, 2017 U.S. Dist. LEXIS 180041, at *9 (E.D. N.C. 2017). Service upon a governmental organization is governed by Rule 4(j)(2) of the Federal Rules of Civil Procedure, which provides that service may be effected by "delivering a copy of the summons and of the complaint to its chief executive officer" or by serving the summons and complaint ''in the manner prescribed by that state's law for serving a summons or like process on such a defendant."

Service against a defendant in his individual capacity may be made by following state law, delivering a copy of the summons and complaint to the individual personally, leaving a copy at the individual's usual place of abode with a resident of suitable age and discretion, or delivering a copy to an agent authorized to receive process. Fed.R.Civ.P. 4(e). The North Carolina Rules of Civil Procedure allow service upon an individual through one of the following ways:

a. By delivering a copy of the summons and of the complaint to the natural person or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.

b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.

c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee.

d. By depositing with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of the summons and complaint, addressed to the party to be served, delivering to the addressee, and obtaining a delivery receipt. As used in this sub-subdivision, "delivery receipt" includes an electronic or facsimile receipt.

e. By mailing a copy of the summons and of the complaint by signature confirmation as provided by the United States Postal Service, addressed to the party to be served, and delivering to the addressee.

N.C. G.S. § 1A-1, Rule 4(j)(1). "Service of process cannot be effected upon Defendant by serving at his place of employment individuals who are not authorized to accept service of process." Watson v. Jiffy Lube Lube Core, No. 5:10-CV-00572-F, 2011 U.S. Dist. LEXIS 63468, at *5 (E.D. N.C. June 15, 2011) (quoting Elkins v. Broome, 213 F.R.D. 273, 276 (M.D. N.C. 2003)).

Here, summonses were issued on March 10, 2021, and were addressed to defendant at the address for the Cary Police Department. DE 40. The summonses were delivered by certified mail, return receipt requested, on March 15, 2021, to "Cary PD." DE 42. The Court first finds that plaintiff has not served defendant in his official capacity. Since plaintiff is suing defendant in his official capacity as a government employee, this is essentially a suit against his employer. The public entity defendant serves is the Town of Cary. Under North Carolina law, plaintiff may serve a "city, town or village by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk." N.C. Gen. Stat. § 1 A-1, Rule 4(j)(5)(a). Plaintiffs prepared summons does not comport with that requirement, as plaintiff has failed to serve the mayor, town manager, or clerk for the Town of Cary. Therefore, this Court finds that plaintiffs claims against defendant in his official capacity should be dismissed pursuant to Rule 12(b)(5).

The Court further finds that plaintiff has not served defendant in his individual capacity. Plaintiff claims that he sent the summons to plaintiffs last known address, but defendant's place of work is not his last known address. Plaintiff may not serve defendant by sending the summons to individuals at defendant's place of employment that are not authorized to accept service. Plaintiff filed proof of service forms for defendant indicating that a copy of the complaint and summons were delivered by certified mail to Cary PD, but defendant has provided an affidavit stating that Cary PD was not his agent or authorized to accept service on his behalf. Furthermore, on the proof of summons form, the name "Cary PD" is printed in the space for identification of the recipient, without a signature and without the check-marked indication that the Cary PD is defendant's agent. Therefore, plaintiff has not complied with the requirements of service, and plaintiffs claims against plaintiff in his individual capacity should be dismissed pursuant to Rule 12(b)(5).

Defendant also moves to dismiss for failure to state a claim pursuant to Rule 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Papasan v Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A complaint must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," and mere recitals of the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual allegations do not nudge the plaintiffs claims "across the line from...