United States District Court, W.D. North Carolina, Charlotte Division
GEORGIA FERRELL, as Administratrix of the Estate of JONATHAN A.P. FERRELL, Plaintiff,
CITY OF CHARLOTTE; COUNTY OF MECKLENBURG; RANDALL W. KERRICK, both individually and in his official capacity as a law enforcement officer with the Charlotte-Mecklenburg Police Department; and RODNEY MONROE, in his official capacity as a law enforcement officer with the Charlotte-Mecklenburg Police Department, Defendants.
GRAHAM C. MULLEN, District Judge.
THIS MATTER is before the Court on Defendant Mecklenburg County's Motion to Dismiss (Doc. No. 24), Plaintiff's Response in Opposition (Doc. No. 26), Defendant's Reply (Doc. No. 29), Plaintiff's Supplemental Response in Opposition (Doc. No. 34), and Defendant's Supplemental Reply (Doc. No. 36). The Court conducted a status conference in this case on October 6, 2014. At that conference, the Court ordered discovery on the issues presented in the County's Motion. Plaintiff thereafter filed a supplemental response, which includes transcript excerpts from a Rule 30(b)(6) deposition of the County, as well as other documents in support of her opposition to the County's Motion. On February 10, the Court converted the County's Motion to one for summary judgment and granted the County leave to file its own supplemental response. ( See Doc. No. 35). That response having been filed, this matter is now ripe for consideration.
This lawsuit arises from the shooting death of Jonathan A.P. Ferrell on September 14, 2013. The Complaint alleges that, on that date, Jonathan was unlawfully shot and killed by Defendant Randall Kerrick, who was a patrol officer with the Charlotte-Mecklenburg Police Department ("CMPD"). The incident occurred in an unincorporated area of Mecklenburg County.
The Complaint asserts claims under 42 U.S.C. § 1983 for violation of civil rights and deliberate indifference, as well as state law claims for wrongful death based on negligence/gross negligence, and assault and battery against all Defendants. ( See Doc. No. 1). It further alleges that Mecklenburg County is jointly and severally liable with the other Defendants for damages, including punitive damages, based on agency, the doctrine of respondeat superior, and breach of duties owed to Plaintiff.
The County's Motion, filed on August 6, 2014, asserts that there is no basis for its liability under § 1983 because the County has never been involved in the operation or management of the CMPD, and in fact has not been involved in the management or control of any police function or department since 1993. It likewise asserts that there is no basis for its liability under the doctrines of agency or respondeat superior because the Chief and officers of the CMPD were not employees or agents of the County. Attached to its Motion and offered in support are: (1) the affidavit of Dena R. Diorio, Mecklenburg County Manager; (2) the 1993 Agreement for Consolidation of the Charlotte and Mecklenburg County Police Departments; and (3) the 1996 Agreement for Continued Consolidation of the Charlotte and Mecklenburg County Police Departments. (Doc. No. 24-1).
Contemporaneous with her Response in Opposition, Plaintiff filed a motion asking the Court to exclude the exhibits or, in the alternative, convert the County's Motion to one for summary judgment, as the exhibits are matters outside the pleadings that should not be considered on a motion to dismiss. At a status conference held on October 6, 2014, the Court ordered that Plaintiff would be allowed to conduct discovery on the issues presented in the County's Motion. Thereafter, Plaintiff served the City and the County with requests for production and noticed a deposition pursuant to Rule 30(b)(6). (Doc. No. 36 at 2). The County served its responses to the requests for production and designated former County Manager Harry Jones as the deponent, which deposition took place on January 14, 2015. (Id. ) On February 6, 2015, Plaintiff filed a supplemental response containing excerpts of the deposition and various other exhibits (Doc. No. 34). After the Court converted Defendant's Motion to one for summary judgment ( see Doc. No. 35), Defendant filed its reply to the supplemental response on March 2, 2015 (Doc. No. 36).
II. LEGAL STANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 47 U.S. 242, 248 (1986). The mere existence of a scintilla of evidence in support of the non-movant's position is not sufficient to establish a genuine dispute. Id. at 252. A material fact affects the outcome of the suit under the applicable substantive law. See id. at 248. When determining whether a dispute is genuine or a fact is material, courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion. Scott v. Harris, 550 U.S. 372, 378 (2007). Unsupported speculation, however, is insufficient to defeat a motion for summary judgment. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).
In her supplemental response, Plaintiff notes the testimony of County Manager Dena R. Diorio that "[t]he CMPD has been operated and administered by the City of Charlotte since 1993 without any oversight or control by the County." ( See Doc. No. 24-1 at 2-3). Plaintiff then contends that (1) several exhibits now in the record contradict Diorio's assertion; and (2) if this assertion is true, it constitutes deliberate indifference on the part of the County with regard to the constitutional rights of its citizens. ( See Doc. No. 34 at 30-31). For the reasons stated below, the Court finds these arguments unavailing.
A. Allegations in the Complaint
The Complaint alleges repeatedly that the County either continues to operate or is otherwise involved, directly or indirectly, in the operations of the CMPD. Relevant excerpts of these allegations are included here for reference:
At all times relevant to this action, Defendant County acted through its managers and policy makers, including the Chief of Police and other employees of the [CMPD]; and the acts, edicts, and practices of said persons represent the official policies of Defendant County. (Compl. ¶ 6).
In the exercise of statutory powers granted by the North Carolina Legislature, Defendant City, along with Defendant Mecklenburg County, established and created and continue to operate the [CMPD]. (Compl. ¶ 19).
[T]he operating budget of CMPD is funded jointly by Defendants City and County. Both Defendants City and County have the actual right and legal authority to direct and control CMPD, its policies and procedures, officers and employees. (Compl. ¶ 23).
Defendant Kerrick was employed by the Defendant City and/or Defendant County and/or the [CMPD]... and was acting at all relevant times as an agent of Defendant City and/or Defendant County within the course and scope of his duties... and under the color of laws, statutes, regulations, customs, practices and usage of the City ...