United States District Court, M.D. North Carolina
DEREKH A. ROGERS, Plaintiff,
DOUG HENDERSON, in his individual capacity; VANCE BRADFORD LONG, Judicial District 19B, in his individual capacity; STEPHANIE REESE, in her individual capacity; JODY BARLOW, in her individual capacity; and C. E. JENKINS, in her individual capacity, Defendants.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiff Derekh A. Rogers ("Mr. Rogers"), proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 (2012), alleging various constitutional and statutory violations related to an August 2013 arrest and subsequent state court prosecution. Defendants moved to dismiss the Complaint pursuant to Rules 12(b)(2), (5), and (6) of the Federal Rules of Civil Procedure. (ECF No. 8.) For the reasons stated below, the Court grants Defendants' Motion to Dismiss.
Mr. Rogers names five Defendants in his Complaint: (1) North Carolina Superior Court Judge Vance Bradford Long ("Judge Long"); (2) North Carolina Magistrate C. E. Jenkins ("Magistrate Jenkins"); (3) Guilford County District Attorney Doug Henderson ("D.A. Henderson"); (4) Assistant District Attorney Stephanie Reese ("A.D.A. Reese"); and (5) Assistant District Attorney Jody Barlow ("A.D.A. Barlow"). (ECF No. 2 at 2-3.) The Complaint states that each Defendant is being sued in his or her individual and official capacities. (Id. ¶¶ 1, 5(b)-(f).) Further, Mr. Rogers seeks monetary damages in the amount of $128, 000 against each Defendant for a total of $640, 000. (Id. )
The Complaint alleges, among other things, the following conduct on the part of Defendants: (1) On August 23, 2013, "Plaintiff was unlawfully grabbed and detained by agents acting under the color of law, without jurisdiction or a wet inked signed warrant by an Art III Section 2 Judge;" (2) "[t]he unwarranted orders of defendants who sent agents to arrest plaintiff, due to plaintiffs [sic] religious (Islam) persuasion, and false complaint by an alleged party living in Miami[, ] Florida, claiming to have loss [sic] property in the jurisdiction of Guilford County;" (3) "[n]o probable cause hearing was held;" (4) excessive bail was set by Defendant Magistrate Jenkins due to his religion; and (5) Defendants failed to honor Plaintiff's discovery requests. (ECF No. 2 ¶¶ 3.1-3.2, 3.6, 3.8.) Mr. Rogers asserts "violations of Oath of Office, U.S. Constitution Art VI Section 2 [sic], Title 42 USC Section 1983 and Plaintiffs 1st Amendment rights." (Id. ¶ 1.) In addition, Mr. Rogers alleges violations of 18 U.S.C. §§ 241 and 242, due process, unspecified "civil rights, " and gross negligence as well as a conspiracy with intent to violate the First, Sixth, and Fourteenth Amendments. (Id. ¶¶ 1(b), 3.11, 5(a).)
Defendants argue that this action should be dismissed for lack of personal jurisdiction due to insufficient service of process and further argue that immunity bars Mr. Rogers' claims against them in their individual as well as official capacities.
A. Personal Jurisdiction
Defendants first contend that this Court lacks personal jurisdiction over them pursuant to Rules 12(b)(2) and (5) of the Federal Rules of Civil Procedure because Mr. Rogers' service of process was insufficient. ( See ECF No. 9 at 3-4.) Specifically, they assert that Mr. Rogers' "attempted service... by certified mail addressed to them at their offices" does not comply with Rule 4(j)(4) of the North Carolina Rules of Civil Procedure, which "requires that service be made upon an officer of the State by delivery of process to that officer's designated agent or, absent designation of an agent, delivery of process to the Attorney General of North Carolina." (ECF No. 9 at 3 (citing N.C. Gen. Stat. § 1A-1 (2015); N.C. R. Civ. P. 4(j)(4)).) Defendants have not challenged the sufficiency of Mr. Rogers' service of process in their individual capacities and, therefore, any such objection is waived. Accordingly, the Court addresses only the sufficiency of Mr. Rogers' service of process on Defendants in their official capacities.
The Federal Rules of Civil Procedure do not provide an explicit method for service on state officers sued in their official capacities. Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 28 (1st Cir. 1988). However, Federal Rule 4(j)(2) does provide that service of process can be achieved on a state or state-created organization by serving its chief executive officer or in accordance with state law. Fed.R.Civ.P. 4(j)(2). Under North Carolina Rule 4(j)(4), service on a state officer can be perfected only by delivery of process to either the officer's designated agent or the Attorney General of North Carolina. N.C. R. Civ. P. 4(j)(4).
Service on Judge Long and Magistrate Jenkins in their official capacities is improper under North Carolina law, as service through certified mail, return receipt requested, is insufficient service on a state officer under North Carolina Rule 4(j)(4). Similarly, in person service on D.A. Henderson is insufficient pursuant to North Carolina Rule 4(j)(4) to effect service on D.A. Henderson, A.D.A. Reese, and A.D.A. Barlow in their official capacities. It is less clear, however, whether Defendants have been properly served in their official capacities under federal law.
Although Rule 4 of the Federal Rules of Civil Procedure is silent on the manner of service of process on a state officer in his or her official capacity, Defendants maintain that Mr. Rogers' attempted service on them was insufficient because "it was not personal delivery to the chief executive officer" under Federal Rule 4(j)(2). ( See ECF No. 9 at 3.) Although Federal Rule 4(j)(2) refers to state or state-created organizations and not state officers, Defendants' position has support from a number of courts. See, e.g., Libertarian Party v. Dardenne, No. 08-582-JJB, 2009 WL 790149, at *5 (M.D. La. Mar. 24, 2009); see also Mack v. Fox, No. 1:07CV760, 2008 WL 4832995, at *3 (M.D. N.C. Nov. 4, 2008), recommendation adopted, 2008 WL 7674789 (M.D. N.C. Dec. 10, 2008). However, other courts have held that the rules governing service on an individual under Federal Rule 4(e) also apply to service on a state officer in his or her official capacity. See Caisse v. DuBois, 346 F.3d 213, 216 (1st Cir. 2003); Echevarria-Gonzalez, 849 F.2d at 30; Gueli v. United States, No. 806CV1080T27MSS, 2006 WL 3219272, at *4 (M.D. Fla. Nov. 6, 2006). Federal Rule of Civil Procedure 4(e) provides that service can be achieved on an individual by serving that individual in person, by serving the individual's authorized agent, or in accordance with state law. Fed.R.Civ.P. 4(e).
The Court need not resolve whether Mr. Rogers' service of process was sufficient to establish personal jurisdiction over Defendants in their official capacities because Mr. Rogers' claims must be dismissed pursuant to Rule 12(b)(6). See Adams v. Shipman, No. 1:13CV858, 2014 WL 4924299, at *3 (M.D. N.C. Sept. 30, 2014) (not dismissing for insufficiency of process because the plaintiff's claims were subject to dismissal for failure to state a claim). Moreover, although a plaintiff's failure to perfect service is grounds for dismissal, "courts generally allow pro se plaintiffs a chance to remedy technical insufficiencies in service of process." Thomas v. Nelms, No. 1:09-CV-491, 2013 503419, at *1 (M.D. N.C. Feb. 14, 2013). This is particularly true where, as in this case, the defendants have actual notice of the lawsuit commenced against them, and the plaintiff has made a good faith effort to properly serve the defendants. See Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984) ("When the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a liberal construction."); Adams, 2014 WL 4924299, at *3 (not dismissing for insufficiency of process partly because the plaintiff took affirmative steps to effectuate service). Allowing time to cure any service defects would be futile because, as ...