Petty v. Byers

RICHIE PETTY, Plaintiff, v. BILLY BYERS, et al., Defendants.

1:16cv237

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

February 1, 2017

MEMORANDUM AND RECOMMENDATION

Pending before the Court is the Defendants' Motion to Dismiss [# 8]. Plaintiff brought this action against Defendants asserting federal claims pursuant to 42 U.S.C. § 1983, as well as a number of state law claims. The claims all arise out of a search and seizure during a traffic stop that led to Plaintiff's eventual arrest. The Defendants move to dismiss the Amended Complaint in its entirety. Upon a review of the record, the relevant legal authority, and the parties' pleadings, the Court RECOMMENDS that the District Court GRANT in part and DENY in part the Defendants' motion [# 8].

I. Background

A. The Acts Giving Rise to the Claims Asserted in the Amended Complaint

On June 7, 2013, Defendant Sergeant Rodney Fitch, an officer with the Cleveland County Sheriff's Office, initiated a traffic stop of the vehicle Plaintiff was driving for allegedly failing to stop at a stop sign. (Pl.'s Am. Compl. ¶¶ 5, 19, ECF No. 2.) Plaintiff pulled his vehicle over without incident. (Id. ¶¶ 3, 20.) Sergeant Fitch then approached the vehicle, obtained Plaintiff's driver's license, and directed Plaintiff to move his vehicle to a nearby vacant lot. (Id. ¶ 20.) After Plaintiff moved his vehicle to the lot, Sergeant Fitch requested to see the vehicle's bill of sale paperwork. (Id. ¶ 21.) When Plaintiff was unable to produce a bill of sale, Sergeant Fitch instructed Plaintiff to step out of the vehicle and stand to the rear of Plaintiff's vehicle. (Id. ¶ 21.) Plaintiff complied with Sergeant Fitch's request and exited the vehicle. (Id.)

While Plaintiff was standing behind his vehicle and in front of Sergeant Fitch's vehicle, Defendant Billy Byers arrived on the scene to assist Sergeant Fitch. (Id. ¶ 22.) At the time of the incident giving rise to this lawsuit, Defendant Byers was an officer with the Cleveland County Sheriff's Office. (Id. ¶ 4.) Defendant Byers, however, is no longer employed by the Cleveland County Sheriff's Office. (Byers Decl. ¶ 1, ECF No. 8-5.)

Upon arriving on the scene, Defendant Byers parked his vehicle alongside the vehicle of Sergeant Fitch, a few feet behind Plaintiff's vehicle. (Id. ¶ 22.) Sergeant Fitch then instructed Defendant Byers to call the K-9 officer to the scene in casePlaintiff did not consent to a search of his vehicle. (Id. ¶ 24.) Pursuant to Sergeant Fitch's request, Defendant Byers confirmed that the K-9 officer was on his way to the scene. (Id.) Sergeant Fitch then completed the checks of Plaintiff's license. (Id. ¶ 25)

During the traffic stop, Sergeant Fitch inquired about the address on Plaintiff's license, and Plaintiff explained that he had moved to a new address two years ago but had failed to change the address listed on his license with the Department of Motor Vehicles ("DMV"). (Id.) Sergeant Fitch then completed the warning citation for Plaintiff for a stop sign violation and for failure to notify the DMV of a change of address. (Id. ¶ 26.) Sergeant Fitch handed the citation to Plaintiff and returned his license. (Id.) Plaintiff contends that these actions terminated the traffic stop, and, thus, the officers could no longer detain Plaintiff on the scene based on the initial traffic infraction. (Id. ¶¶ 46-47, 49.)

Believing the traffic stop was concluded, Plaintiff attempted to return to his vehicle. (Id. ¶ 27.) As he was returning to his vehicle, Sergeant Fitch asked Plaintiff if there were any weapons, drugs, or large sums of money in the car; Plaintiff responded no. (Id.) Sergeant Fitch then asked for permission to search Plaintiff's vehicle. (Id. ¶ 28.) Plaintiff refused to consent to a search. (Id.)

After Plaintiff refused to consent to a search of the car, Sergeant Fitch askedPlaintiff to stand with Defendant Byers in front of Byers's patrol car and explained that a K-9 officer was on his way to the scene. (Id. ¶ 29.) Plaintiff inquired as to whether he could place the citation in his car, but Sergeant Fitch denied the request. (Id. ¶ 30.) Plaintiff subsequently attempted to walk towards the rear of his own vehicle, but Sergeant Fitch instructed Plaintiff to return to Defendant Byers's vehicle. (Id. ¶¶ 31-32.) Plaintiff complied with Sergeant Fitch's instructions. (Id. ¶ 32.)

When Sergeant Fitch walked towards his patrol car to retrieve a cell phone, Plaintiff moved towards his vehicle and leaned into the driver's side window. (Id. ¶ 34.) While he was leaning through the window, Plaintiff retrieved a black bag located in the middle console area of the vehicle. (Id.) As he was leaning through the window to retrieve the bag, Sergeant Fitch grabbed Plaintiff from behind and attempted to pull Plaintiff out of the vehicle and wrestle him to the ground. (Id. ¶ 35.) As Plaintiff pulled away from the Sergeant Fitch's grasp, Sergeant Fitch pulled Plaintiff's shirt over Plaintiff's head. (Id.) Plaintiff did not strike Sergeant Fitch or make any aggressive movements towards either Sergeant Fitch or Defendant Byers. (Id. ¶ 36.)

Despite the fact that he did not see a weapon and Plaintiff was not acting in an aggressive manner towards Sergeant Fitch, Defendant Byers fired his pistol atPlaintiff. (Id. ¶¶ 37-39.) Plaintiff did not in fact have a weapon on his person or in his vehicle at the time. (Id. ¶¶ 43-44.) Defendant Byers discharged his firearm with the intent of killing Plaintiff or inflicting serious injury on Plaintiff. (Id. ¶ 39.) The bullet fired by Defendant Byers hit Plaintiff in the lower, left side of the abdomen, significantly injuring Plaintiff. (Id. ¶ 41.) As a result of the injuries sustained from being shot by Defendant Byers, Plaintiff suffers from a permanent disability. (Id. ¶ 41.)

B. The Legal Claims Asserted by Plaintiff in the Amended Complaint

The Amended Complaint asserts a number of claims against Defendants. The first cause of action asserts a false imprisonment claim against Defendants Fitch and Byers. The second cause of action asserts a claim for assault and battery against Defendants Fitch and Byers. In addition, Plaintiff contends that Defendant Cleveland County Sheriff's Office is liable under the doctrine of respondeat superior and for the failure to establish a reasonable procedure to prevent the use of excessive force. The third cause of action asserts a willful negligence claim against Defendants Byers and Fitch. Plaintiff also contends that Defendant Cleveland County Sheriff's Office is liable under the doctrine of respondeat superior and for the failure to establish a reasonable procedure to prevent the alleged negligent acts. The fourth cause of action asserts a negligence claim against Defendants Fitch,Byers, and the Cleveland County Sheriff's Office. The fifth cause of action asserts a Section 1983 claim against Defendants Fitch and Byers. The sixth cause of action asserts, in the alternative, a substantive due process claim pursuant to the North Carolina Constitution. Plaintiff asserts this claim in the alternative in the event that the Court finds that Defendants are entitled to immunity from suit on the state law claims. The seventh cause of action asserts a claim for damages under N.C. Gen. Stat. § 162-50 against Defendants Byers, Fitch and the Sheriff of Cleveland County. Finally, the Amended Complaint asserts an action on the bond for the Sheriff of Cleveland County pursuant to N.C. Gen. Stat. §58-76-5.

II. Legal Standard

The central issue for resolving a Rule 12(b)(6) motion is whether the claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009). In considering Defendants' motion, the Court accepts the allegations in the Amended Complaint as true and construes them in the light most favorable to 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 claims need not contain "detailed factual allegations," but must contain sufficient factual allegations to suggest the required elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (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. 662, 678, 129 S. Ct. 1937, 1949 (2009).

The Amended 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. at 678, 129 S. Ct. at 1949; see also Consumeraffairs.com, 591 F.3d at 255. The mere possibility that a 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 claim from possible to plausible. Twombly, 550 U.S. at 570, 127S. Ct. at 1974; Consumeraffairs.com, 591 F.3d at 256.

III. Analysis

A. The Section 1983 Claims Asserted Against Sheriff Alan Norman

As a threshold matter, the Amended Complaint is devoid of any factual allegations that Sheriff Norman personally took any...