United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on the motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 6, by defendant City of Raleigh Police Department ("RPD") (DE 9); on the motion to dismiss pursuant to Rule 12(b)(6) by defendant The City of Raleigh ("Raleigh") (DE 11); and on plaintiff's motion for leave to file an amended complaint (DE 15). All motions have been fully briefed, and issues raised are ripe for ruling. For the reasons that follow, the court will DENY AS MOOT defendant RPD's motion to dismiss, GRANT IN PART and DENY IN PART defendant Raleigh's motion to dismiss, and GRANT IN PART and DENY IN PART plaintiffs' motion to amend.
STATEMENT OF THE CASE
Plaintiffs, who are mother and daughter, initiated this action on September 26, 2013, by filing complaint in Wake County Superior Court against defendants Raleigh, RPD, and Bowden. Plaintiffs assert claims under 42 U.S.C. § 1983, and a claim for negligence. Defendants removed the action to this court on November 1, 2013, and moved for an extension of time to respond to plaintiffs' complaint (DE 1, 6). Defendants' motion for extension of time was granted (DE 8), and on December 9, 2013, defendants filed the instant motions to dismiss. Plaintiffs responded to these motions, and moved to amend their complaint (DE 14, 15). Plaintiffs' motion to amend is opposed.
STATEMENT OF FACTS
The facts as alleged in plaintiffs' complaint are as follows: On or about September 27, 2010, plaintiff Anika Hatley,  a sixteen (16) year old high school student, was in the Athens Drive High School cafeteria. Compl. ¶ 9. The cafeteria was crowded and full of students. Id . A fight broke out between two other students, and many other students gathered around to watch. Id . ¶ 10. Plaintiff Anika Hatley was not among the crowd of watching students, and at some point moved near to the cafeteria's serving line. Id . ¶¶ 11, 17.
Defendant Bowden, a uniformed police officer, was present in the cafeteria as part of the Student Resource Officer program, which places uniformed officers in Wake County School System schools for security. Id . ¶¶ 3, 12. She was not ordinarily assigned to the Student Resource Officer position, but was filling in for the regular officer. Id . ¶ 12. Defendant Bowden moved to intervene in the fight and disburse the watching crowd, spraying pepper spray at the fighting students, as well as in all directions at the crowd, for over ten (10) seconds. Id . ¶ 15. The students reacted to the pepper spray "forcefully and chaotically" and began running for the cafeteria exits creating "a stampede condition." Id . ¶ 16. As she moved with the crowd, plaintiff Anika Hatley was knocked down and trampled by many other students, suffering serious injury. Id . ¶¶ 3, 17.
Plaintiff Anika Hatley, and her mother, Plaintiff Amy Hatley, assert the following claims as a result of this incident: (1) a claim against defendant Bowden in her individual and official capacity under 42 U.S.C. § 1983 and against defendant Raleigh on the basis of respondeat superior; (2) a claim for negligence against defendant Bowden, and against defendant Raleigh on the basis of respondeat superior; and (3) a claim against defendant Raleigh under 42 U.S.C. § 1983 for failure to train defendant Bowden.
Plaintiffs also allege that
[u]pon information and belief, Pursuant to N.C. General Statute § 160A-485 or other authority, the City of Raleigh had purchased and had in force on September 27th, 2013 liability insurance, or participated in a high risk pool, or adopted a city council resolution creating a funded reserve meant to be the same as purchasing insurance under N.C. General Statute § 160A-485 and waived any governmental immunity it might have to the extent of such insurance as provided by the policy, terms of the risk pool or adoption of such resolution.
Compl. ¶ 8.
A. Motions to Dismiss
1. Standard of ...