Lawrence Alexander Jr. v. the City of Greensboro

762 F.Supp.2d 764

Lawrence ALEXANDER Jr., Ellis Allen, Mitchell Alston, Frances R. Banks, Ahmed Blake, Michael O. Brodie, Kevin E. Chandler, Charles E. Cherry, Ernest Cuthbertson, Darrin Davis, Steven A. Evans, William Graves, Milford J. Harris II, Jonathan Heard, Antuan Hinson, Stephen L. Hunter, Brian James, Demetrius W. Johnson, John O. Legrande, George M. Little, Darrell McDonald, C.L. Melvin, Stacy A. Morton Jr., Willie Parker, Larry Patterson Jr., William A. Phifer, Joseph Pryor, Norman Rankin, Wayne Redfern, Alexander Ricketts, Ronald Rogers, Steven Snipes, Calvin Stevens Jr., Eric Stevenson Jermeir Jackson–Stroud, Julius Tunstall, Allen Wallace, Frank Young and Michael Wayland Wall, Plaintiffs,

v.The CITY OF GREENSBORO, David Wray, Former Police Chief of the City of Greensboro, in his individual and official capacities, Randall Brady, Former Deputy Police Chief of the City of Greensboro, in his individual and official capacities, Trudy Wade, Member of City Council of the City of Greensboro, in her individual and official capacities, and Scott Sanders, in his individual and official capacities, Defendants.

No. 1:09–CV–293.

United States District Court, M.D. North Carolina.

Jan. 5, 2011.

Jason Andrew Knight, Kenneth A. Free, Jr., Knight & Free, PLLC, John F. Bloss, Sr., Robertson Medlin & Bloss, PLLC, Greensboro, NC, for Plaintiffs.Alan W. Duncan, Allison O. Van Laningham, Smith Moore, L.L.P., Kenneth R. Keller, Carruthers & Roth, P.A., Seth R. Cohen, Smith James Rowlett & Cohen, George William House, William P.H. Cary, Brooks Pierce McLendon Humphrey & Leonard, Greensboro, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

TABLE OF CONTENTSI.

BACKGROUND

776

II.

ANALYSIS

779

A.

Standard for Rule 12(b)(6) Motions

780

B.

Federal Claims

781

1.

City of Greensboro

781

a.

42 U.S.C. §§ 1981 and 1983 (Counts II, V)

781

i.

Municipal Policy

781

ii.

Municipal Custom

783

iii.

Proposed SAC

783

b.

Conspiracy and 42 U.S.C. § 1981 (Count III)

784

c.

42 U.S.C. § 1985(3) (Count V)

785

2.

Defendant Wade

785

a.

Official Capacity Claims

785

b.

42 U.S.C. § 1983 (Count V)

786

c.

42 U.S.C. § 1985(3) (Count V)

787

3.

GPD Defendants (Wray, Brady, and Sanders)

788

a.

Official Capacity Claims

788

b.

42 U.S.C. § 1981 (Count II)

789

i.

Domino's Pizza, Inc. v. McDonald ....

789

ii.

The “Plausibility” Standard

791

(a).

All Plaintiffs

792

(1)

Disparate Treatment

792

(2)

Hostile Work Environment

794

(b).

Plaintiff Steven A. Evans

795

(c).

Plaintiff Lawrence Alexander Jr.

796

(d).

Plaintiff Antuan Hinson

797

(e).

Plaintiff Brian James

797

(f).

Plaintiffs Rankin and Patterson

798

(1)

Discussion of Personnel Information

798

(2)

Discriminatory Investigation

799

(g).

Plaintiffs Cuthbertson and Rankin

799

(1)

Fake Investigations

799

(2)

Undercutting of Plaintiffs' Investigation

799

(h).

Plaintiff Joseph Pryor

799

(1)

Improper Administrative Pressure

799

(2)

Potential Improper Investigation

801

(i).

Plaintiff William A. Phifer

801

(j).

Plaintiff Stephen L. Hunter

801

(1)

Inappropriate Discipline

801

(2)

Retaliatory Investigation

802

(k).

Plaintiff Steven Snipes

802

( l ).

“Assistant Chief Stevenson”

803

(m).

Summary

803

c.

Conspiracy and 42 U.S.C. § 1981 (Count III)

803

d.

42 U.S.C. §§ 1983 and 1985(3) (Count V)

804

i.

42 U.S.C. § 1983 (Count V)

805

(a).

First and Fifth Amendments

805

(b).

Fourth Amendment

806

(c).

Due Process

806

(d).

Equal Protection

807

(e). Summary

808

ii.

42 U.S.C. § 1985(3) (Count V)

808

C.

State Claims

809

1.

Breach of Contract (Count I)

809

2.

North Carolina Equal Employment Practices Act (Count IV)

810

3.

Invasion of Privacy (Count VI)

811

a.

City of Greensboro

811

b.

Defendant Wade

812

c.

GPD Defendants

817

4.

Tortious Interference with Prospective Economic Advantage (Count VII)

818

5.

Gross Negligence (Count VIII)

822

a.

City of Greensboro

822

b.

Defendant Wade

822

c.

Defendants Wray and Brady

823

6.

Civil Conspiracy (Count IX)

824

D.

Injunctive Relief (“Count IX [sic]”)

824

E. Summary

825

III.

CONCLUSION

825 This matter is before the court on various motions to dismiss filed by Defendants Randall Brady (“Brady”) and Scott Sanders (“Sanders”) (Doc. 22), David Wray (“Wray”) (Doc. 24), the City of Greensboro (“the City”) (Doc. 27), and Trudy Wade (“Wade”) (Doc. 29). Plaintiffs oppose each motion. Additionally, Plaintiffs have filed a motion to amend the complaint again (Doc. 32), which all Defendants oppose. For the reasons below, the motions are granted in part and denied in part.

I. BACKGROUND

This action was originally commenced in the Superior Court for Guilford County (North Carolina) on January 9, 2009. Plaintiffs filed an amended complaint (“Amended Complaint”) dated March 13, 2009 (Doc. 5), and the City removed the case to this court on April 17, 2009.

The Amended Complaint sets forth certain allegations, which are supplemented and expanded on by the proposed Second Amended Complaint (“SAC”) (Doc. 32, Ex. 1). Because all allegations in the SAC must be considered to determine whether the proposed amendment would be futile, the court here will summarize all the factual allegations as contained in both complaints. For purposes of the motions to dismiss, the court will view all allegations in the light most favorable to Plaintiffs as the non-moving parties. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997).

Plaintiffs ¹ are all African–American/black police officers employed by the Greensboro Police Department (“GPD”) when Defendant Wray was promoted to Chief of Police and Defendant Brady to Deputy Chief. Defendant Sanders was assigned to GPD's Special Investigation Division (“SID”), referred to as the Special Intelligence Section in the SAC. Wray, Brady and Sanders are white.

After their promotions, Wray and Brady allegedly directed subordinate officers to gather pictures of black GPD officers for line-up books and other visual aids that were sometimes referred to as the “Black Book.” Plaintiffs contend, upon information and belief, that their photographs, likenesses, or names were included in at least one version of the Black Book, which Sanders and other non-black officers showed on numerous occasions to the general public and criminal suspects in an effort to implicate black GPD officers in wrongdoing. Plaintiffs allege that the Black Book was not compiled or used for any legitimate investigatory purpose.²

According to Plaintiffs, Defendants Wray, Brady, Sanders, and the City improperly used the SID, which was created to investigate groups like the Ku Klux Klan and street gangs, to investigate black GPD officers, including Plaintiffs, even though the GPD had a Criminal Investigation Division (“CID”) whose purpose was to investigate officer misconduct. Wray and Brady instructed Sanders and other non-black SID officers to investigate black GPD officers numerous times without following GPD standards. On several occasions, they allegedly investigated black GPD officers and their families despite no complaints having been made against the officers. When third parties alleged misconduct by GPD officers, moreover, Sanders and the SID unit targeted only the black officers involved. Upon instructions of Wray and Brady, and contrary to GPD policy, black officers were allegedly investigated without any reasonable suspicion of unlawful conduct in order to test the officers' honesty and to entrap them. Plaintiffs claim that the actions of SID officers, under the direction of Wray and Brady, created an atmosphere of fear, distrust, and suspicion and undermined the morale of the GPD.

Plaintiffs allege generally that Wray, Brady, and the City “repeatedly, intentionally, and continuously” failed to promote black GPD officers to positions for which they were qualified and should have been promoted, although no instance of a Plaintiff being denied a promotion is alleged. (Doc. 5 ¶ 82; Doc. 32, Ex. 1 ¶ 106.) Plaintiffs allege that even in cases where black GPD officers were promoted (Plaintiffs identify two such officers), such promotions were made only to suggest the appearance of equal treatment. Plaintiffs also allege generally that black GPD officers were “frequently and typically denied opportunities and benefits afforded to other officers,” although Plaintiffs allege only facts relating to (1) a denial of reimbursement of expenses for Plaintiff Steven A. Evans (“Evans”) for his attendance at a marksmanship certification program and (2) Wray's designation of white officers, instead of Evans, as marksmanship instructors at local community colleges and/or the Greensboro Police Academy. (Doc. 5 ¶ 85; Doc. 32, Ex. 1 ¶ 109.)

Plaintiffs allege that Wray and the City “on numerous occasions violated the North Carolina Personnel Privacy Act in an effort to embarrass, intimidate, and/or discredit” black GPD officers, citing a June 2005 meeting with the Greensboro Police Officers Association during which “Wray publicly discussed the details of investigations into allegations of criminal conduct, identifying by name various black officers of the [GPD] in connection with such investigations.” (Doc. 5 ¶ 90.) Even after their resignations, Wray and Brady allegedly routinely disclosed personnel information of black GPD officers to a news reporter. ( Id.; see Doc. 5–2 ¶ 120; Doc. 34 at 7.) Plaintiffs also allege that Wray, Brady, and others in management positions within the GPD instituted, ratified, or approved of these discriminatory acts and that race “was at least a motivating factor for each of the unlawful employment practices described herein.” (Doc. 5 ¶¶ 86, 88.)

On or about November 11, 2005, the City retained Risk Management Associates (“RMA”), a consulting firm, to investigate allegations brought to the City's attention about Wray, Brady, and Sanders. (Doc. 32, Ex. 1 ¶ 96.) RMA interviewed 52 GPD officers and law enforcement officials as part of its review and on December 11, 2005, issued a report (“RMA Report”) that allegedly found that “the GPD engaged in a number...