United States District Court, Eastern District of North Carolina, Northern Division
ROBERT CARTWRIGHT and DENISE O. SAWYER, Administratrix of the Estate of Jonathan Sawyer, III, Plaintiffs,
TOWN OF PLYMOUTH, NORTH CAROLINA; KENNETH CREQUE; and JOANNE FLOYD Defendants.
LOUISE W. FLANAGAN, United States District Judge
This matter is before the court on motion to dismiss by defendants Joanne Floyd ("Floyd") and Town of Plymouth, North Carolina ("Plymouth"), pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 16). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Judge Robert T. Numbers, II, entered memorandum and recommendation ("M&R"), wherein it is recommended that the motion to dismiss be granted. Plaintiffs filed objections to the M&R,  and defendants Floyd and Plymouth responded. In this posture, the issues raised are ripe for ruling. For the following reasons, the court adopts the M&R and grants the motion to dismiss.
Plaintiff Robert Cartwright ("Cartwright") and substituted-plaintiff Jonathan Sawyer, III ("Sawyer"), both former police officers with the Plymouth Police Department, commenced this action on June 29, 2014, against defendant Plymouth; defendant Kenneth Creque, in his personal capacity as former Town Manager of Plymouth; and defendant Floyd, in her official capacity as current Town Manager of Plymouth. Plaintiffs assert that defendants violated their federal constitutional rights in the course of disciplining them and terminating their employment with the Plymouth Police Department. Plaintiffs assert four claims: (1) retaliation for exercise of First Amendment right of freedom of speech, in violation of 42 U.S.C. § 1983, asserted against all defendants, (2) retaliation for exercise of First Amendment right to petition for redress of grievances, in violation of 42 U.S.C. § 1983, against all defendants, (3) denial of equal protection of laws, in violation of 42 U.S.C. § 1983, against all defendants, and (4) wrongful discharge in violation of public policy of North Carolina, against defendant Plymouth.
On August 25, 2014, defendants Floyd and Plymouth filed a motion to dismiss all claims against them for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6).
On November 10, 2014, defendant Creque filed a motion to dismiss for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6).
The court stayed scheduling activities in the case pending outcome of the motions to dismiss. The court referred the motion to dismiss by defendants Floyd and Plymouth to the magistrate judge, on November 19, 2014. The court referred the motion to dismiss by defendant Creque to the magistrate judge on January 20, 2015.
In the M&R, it is recommended that the court dismiss the federal constitutional claims against defendants Floyd and Plymouth, on the basis that plaintiffs have not alleged that the alleged constitutional violations were the result of an official policy or custom of Plymouth. In addition, it is recommended that the court dismiss the wrongful discharge claim against Plymouth because plaintiffs failed to identify a North Carolina statutory or constitutional provision that was violated by their termination.
STATEMENT OF FACTS
The court adopts and incorporates herein the summary statement of facts set forth in the M&R.
A. Factual Allegations Relevant to Cartwright's Termination
On April 14, 2012, Cartwright was involved in two investigations: one involving a female subject detained by a Tyrell County deputy sheriff for allegedly stealing property from a business within the Town's jurisdiction and a breaking and entering ("B&E") at a Town residence. (Compl. ¶¶ 9-14). In the first investigation, Cartwright did not arrest the female subject. He allowed her to remain in the custody of the deputy sheriff who then charged her with possession of stolen goods and transported her to j ail. (Id. at ¶¶ 11-12).
In the second investigation, Cartwright responded to the B&E call with his partner, Officer Muhammad. Officer Muhammad apprehended the alleged perpetrator of the crime several hours later, but Cartwright transported the suspect to the police department. (Id. at ¶¶ 14-16). Officer Muhammad filed the police report on the B&E incident in the computerized reporting system ("Police-Pak"). (Id. at ¶ 19).
When writing the Police-Pak report, Officer Muhammad mistakenly transposed the names of the victims and witnesses. (Id.). Later that morning, when both Cartwright and Muahmmad were headed home after their shifts, Captain Williams of the Town police department called Cartwright and told him "that either [he] or Muhammad need[ed] to return to the [police department] to correct the B&E report." (Id. at ¶ 27). Cartwright attempted to ...