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Mulder v. Norton

United States District Court, Eastern District of North Carolina, Western Division

March 25, 2015

SCOTT NORTON, et al., Defendants.



This matter is before the court upon motions to dismiss filed by Defendant Maynor [DE-32], Defendants Norton, Kidd, Beasley, and Quick [DE-36], and Defendant Rogers [DE-40], and upon the plaintiffs Motion to Appoint Counsel [DE-44]. For the reasons stated below, two of the motions to dismiss [DE-32, -36] are ALLOWED; Rogers's Motion to Dismiss [DE-40] is DISMISSED as moot; and the plaintiffs Motion to Appoint Counsel [DE-44] is DENIED. However, the Clerk of Court is DIRECTED to maintain management of this case in accordance with the directives below.


Plaintiff Edward Mulder filed his complaint against the Defendants on August 9, 2013 [DE-1]. On October 21, 2013, the court adopted the Memorandum and Recommendations of Magistrate Judge Jones, which allowed the case to proceed after dismissing Defendant Rogers. See Order of October 21, 2013 [DE-6]. The court later issued orders, sua sponte, extending the deadlines to serve process on the defendants. See Order of May 2, 2014 [DE-9]; Order of June 12, 2014 [DE-11].

On June 24, 2014, the court denied Mulder's motion to amend his complaint. See Order of June 24, 2014 [DE-15]. The court held that Mulder had to first serve the defendants before requesting leave to amend his pleadings. See Id. Mulder served the defendants, but then filed documents titled "Amendment" [DE-30] and "Corrected Amendment" [DE-31] without moving for leave to file an amended complaint. The motions now at issue followed shortly thereafter.

The allegations in Mulder's Complaint, which the court must accept as true for purposes of the motions to dismiss, show the following. On or about January 6, 2011, Defendants Norton, Kidd, Beasley, and Quick pulled Mulder from his car and hit, kicked, and beat him. See Complaint [DE-1] at 2. Mulder alleges that he sustained serious injuries to his face and body. Id. Mulder also alleges that Defendant Norton directed a racial epithet towards him. Id.

As to Defendant Maynor, Mulder alleges that Maynor arrived on the scene after the assault had taken place and began asking the officers about the incident. See Amendment to Complaint [DE-1-6] at 2. Mulder further alleges that Maynor wrote the facts as reported to him, but that he made "false and inaccurate statements in regard to the alleged incident." Id. Finally, Mulder alleges there was a conspiracy between the officers to not report the actual events. Id. Mulder has sued the Defendants in both their individual and official capacities.


On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), courts must determine the legal sufficiency of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In so doing, courts assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, the '"[f]actual allegations must be enough to raise a right to relief above the speculative level' and have 'enough facts to state a claim to relief that is plausible on its face.'" Wahi v. Charleston Area Med. Or., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009) (alteration in original) (citing Twombly, 550 U.S. at 555, 570). Moreover, although court draw all reasonable factual inferences in a plaintiffs favor, the court is not obligated to accept a complaint's legal conclusions drawn from the facts. Iqbal, 556 U.S. at 678. Nor must the court accept as true "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (internal quotation marks omitted). Indeed, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.


I. Maynor Motion to Dismiss

Defendant Maynor argues that the plaintiff has failed to state a claim against him in both his official and individual capacities. The court agrees.

a. Official Capacity

As a general rule, governmental immunity "bars actions against... the state, its counties, and its public officials sued in their official capacity." Messick v. Catawba Cnty., 110 N.C. App. 707, 714, 341 S.E.2d 489, 493 (1993), overruled on other grounds by Moore v. City of Creedmoor, 345 N.C. 356, 481 S.E.2d 14 (1997). Indeed, "[governmental] immunity prevents the State or its agencies from being sued without its consent." Corum v.Univ. of N.C, 97 N.C. App. 527, 533, 389 S.E.2d 596, 599 (1990), aff'd in part, rev'd in part, 330 N.C. 761, 413 S.E.2d 276 (1992). Furthermore, an action brought against a public officer in his official capacity "is simply another way of suing the public entity of which the officer is an agent." Thompson v. Town of ...

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