United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
N. CARLTON TILLEY, JR. SENIOR JUDGE
This matter is before the Court on Defendants Paul Martin’s, Durham County Sheriff’s Office’s, Michael Andrews’, Worth Hill’s, The Hartford Financial Services Group, Inc.’s and County of Durham, North Carolina’s (collectively “Defendants”) Motion to Dismiss (Doc. #17) pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The motion has been fully briefed and is ripe for review. For the reasons that follow, Defendants’ Motion to Dismiss is granted.
According to the Complaint, on December 23, 2010, Plaintiff Samuel Biers was offered employment as a magistrate sitting in Durham County, North Carolina. (Compl. ¶ 12.) During the course of his employment, he allegedly witnessed several other magistrates take numerous improper and unlawful actions. (Id. ¶ 13.) Mr. Biers submitted a verified complaint on March 9, 2011, reporting these alleged violations, along with related allegations against the then-district attorney, Tracey Cline, a named defendant in the instant action. In addition to filing his verified complaint, Mr. Biers objected to and questioned various other incidents related to the magistrates. (Id. ¶¶ 18-22.) Allegedly in retaliation for his making formal complaints exposing the misconduct of the magistrates and others, then-Sheriff’s Deputy Paul Martin, among others, individually and in concert with others, agreed to take, and did take, action against him. (E.g., id. ¶¶ 25, 28.)
On April 13, 2012, Mr. Biers filed the Complaint in the instant action against numerous defendants, alleging thirteen causes of action. At issue in Defendants’ motion are Mr. Biers’ claims of (1) retaliation in violation of the First Amendment pursuant to 42 U.S.C. § 1983 against Defendant Martin in his individual and official capacities, (2) stigmatization pursuant to 42 U.S.C. § 1983 against Defendant Martin in his individual and official capacities, and (3) “entity liability” pursuant to 42 U.S.C. § 1983 against Defendant County of Durham, North Carolina and Defendant Durham County Sheriff. Defendants argue that Mr. Biers has failed to state claims pursuant to 42 U.S.C. § 1983 upon which relief can be granted, and the Court agrees.
A motion for judgment on the pleadings pursuant to Rule 12(c) of the Rules of Civil Procedure “‘tests only the sufficiency of the complaint and does not resolve the merits of the plaintiff’s claims or any disputes of fact.’” Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (quoting Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014)). Such a motion is analyzed under the same standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Rules of Civil Procedure. Id. at 347.
Therefore, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. at 1965); see also McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (noting that a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in the sense that the complaint’s factual allegations must allow a court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). However, when a complaint states facts that are “’merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’’” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1966). When evaluating whether the complaint states a claim that is plausible on its face, the facts are construed in the light most favorable to the plaintiff and all reasonable inferences are drawn in his favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014). Nevertheless, “labels and conclusions[, ]” “a formulaic recitation of the elements of a cause of action[, ]” and “naked assertions . . . without some further factual enhancement” are insufficient. Twombly, 550 U.S. at 557, 127 S.Ct. at 1966; see also Massey, 759 F.3d at 353 (noting that the Court is not obligated to accept allegations that are “‘unwarranted inferences, unreasonable conclusions, or arguments’” or “‘that contradict matters properly subject to judicial notice or by exhibit’”) (quoting Blankenship v. Manchin, 471 F.3d 523, 529 (4th Cir. 2006)).
When analyzing a Rule 12(c) motion, a court may consider the answer, as well. See id. at 347 (noting that the court could consider the complaint, the answer, matters of public record, exhibits to the answers, and exhibits to the Rule 12(c) motions that were integral to the complaint and authentic); Alexander v. City of Greensboro, No. 1:09-CV-293, 2011 WL 3360644, *2 (M.D. N.C. Aug. 3, 2011). Factual allegations of the answer “‘are taken as true only where and to the extent they have not been denied or do not conflict with the complaint.’” Alexander, 2011 WL 3360644 at *2 (quoting Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D. N.C. 1991) and noting that a defendant cannot rely on facts alleged only in the answer, including affirmative defenses, which contradict the complaint because a plaintiff is not required to reply to the answer and all allegations in the answer are deemed denied).
First, Defendants argue that Mr. Biers’ claim against Defendant Martin in his individual and official capacities for retaliation in violation of the First Amendment fails as a matter of law. Mr. Biers claims that “[t]his Court’s determination [in its July 25, 2013 Order] that the Complaint states an actionable First Amendment Retaliation claim against Defendant Cline controls Defendant Martin’s Motion to Dismiss that claim against him.” (Doc. #25 at 4.) It does not. It is determined that Mr. Biers has failed to state a plausible claim for relief against Defendant Martin for retaliation in violation of the First Amendment pursuant to 42 U.S.C. § 1983.
A plaintiff alleging a § 1983 claim must allege that (1) the defendant “deprived plaintiff of a right secured by the Constitution and laws of the United States, “ and (2) the deprivation was performed under color of state law. Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). “The First Amendment right of free speech includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). In order to state a claim for First Amendment retaliation, Mr. Biers must allege sufficient facts supporting three elements: (1) that his speech was protected under the First Amendment, (2) that Defendant Martin’s retaliatory action adversely affected Mr. Biers’ constitutionally protected speech, and (3) that a causal relationship exists between Mr. Biers’ protected speech and Defendant Martin’s retaliatory action. See Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (citing Suarez, 202 F.3d at 685-86). If Defendant Martin’s alleged retaliatory act is in the form of speech, absent threat, coercion, or intimidation suggesting punishment, sanction, or adverse regulatory action will imminently follow, his speech does not adversely affect Mr. Biers’ First Amendment right. Suarez, 202 F.3d at 687.
First, as to whether a plaintiff’s speech is protected under the First Amendment, “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 1960 (2006). However, even if the speech concerns the subject matter of employment or the public employee expresses his views inside his office, those factors are not dispositive. Id. at 420-21, 126 S.Ct. at 1959. The “controlling factor” is whether the speech was made pursuant to the employee’s duties. Id. at 421, 126 S.Ct. at 1959-60. Outside of determining the protection of a public employee’s speech made during the course of employment, it is clear that discussing the conduct of public officials in office is constitutionally protected speech. See Tobey, 706 F.3d at 391 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966) (“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”)).
Next, “for purposes of a First Amendment retaliation claim under § 1983, a plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct would likely deter ‘a person of ordinary firmness’ from the exercise of First Amendment rights.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005). “The determination of whether government conduct or speech has a chilling effect or an adverse impact is an objective one – we determine whether a similarly situated person of ‘ordinary firmness’ reasonably would be chilled by the government conduct in light of the circumstances presented in the particular case.” The Baltimore Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006). In conducting this objective analysis, it is not necessary to find that the retaliatory action prevents all exercise of the plaintiff’s First Amendment rights. Constantine, 411 F.3d at 500. “The cause of action [for First Amendment retaliation] targets conduct that tends to chill such activity, not just conduct that freezes it completely.” Id. at 500-01.
The Fourth Circuit has stated that adverse action may be found where the defendant public employer takes action that threatens harm to a public employee’s employment, Suarez, 202 F.3d at 686; the defendant government official threatens additional regulatory scrutiny of a private citizen’s business, see Blankenship, 471 F.3d at 529-30; or the defendant public university harms a plaintiff’s academic standing, see Constantine, 411 F.3d at 500-01. In other words, Mr. Biers must show that Defendant Martin’s actions “resulted ...