United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on an amended motion to dismiss
by defendants City of Whiteville, Whiteville Police
Department, Tracey Carter, Stephen/Steven Strickland, Jeffrey
Rosier, and Aundre/Andre Jackson (Whiteville defendants).
Plaintiff, proceeding in this matter pro se, has
responded to the motion, the Whiteville defendants have filed
a document in reply, and the motion is ripe for ruling. For
the reasons discussed below, the Whiteville defendants'
motion is granted.
filed this action on August 17, 2016, alleging claims under
42 U.S.C. § 1983 for violation of his Fourth, Fifth, and
Sixth Amendment rights. Plaintiff also alleges a claim for
intentional discrimination under Title VI of the Civil Rights
Act of 1964 and AOJ Program Statute. 42 U.S.C. § 2000d.
Plaintiff further alleges claims under state law for gross
negligence, invasion of privacy intrusion, and denying access
to public records. On September 27, 2016, plaintiff filed an
amended complaint alleging the same causes of action.
Plaintiff seeks damages in excess of three million dollars
for injuries caused by defendants.
support of his claims, plaintiff alleges the following facts.
On July 24, 2016, at approximately 4:09 p.m., defendants
Strickland and Kemp entered the curtilage immediately
surrounding plaintiff's home located in Whiteville, North
Carolina without permission, consent, a warrant, summons, or
citation. Plaintiff alleges that Kemp was the driver of a
white model New Yorker car which unlawfully trespassed onto
plaintiff's private property after Officer Strickland
conducted what appeared to be a traffic stop of Kemp's
car. Plaintiff alleges that court records do not reveal that
Kemp was issued a warning or citation to demonstrate
reasonable suspicion or probable cause for initiating the
stop. Defendant Officer Carter subsequently arrived and also
trespassed on plaintiff's property. When plaintiff
arrived home, a white car without vehicle tags had been
abandoned in his driveway area. Plaintiff contacted the local
magistrate and 911 dispatch to inform them about the
abandoned vehicle. Defendant Lieutenant Jackson phoned
plaintiff to inform him that the Whiteville Police Department
had relied on what Kemp told them regarding leaving the
vehicle in the yard. The vehicle was towed away at
approximately 8:45 p.m. that evening. Plaintiff's home
surveillance video recorded the incident.
25, 2016, plaintiff arrived at the Whiteville City
Administration facility at approximately 9:30 a.m. requesting
public records of the official police report at
plaintiff's address as well as the Whiteville Police
Department's standard operating procedure manual.
Plaintiff was sent to the Whiteville Police Department to
make his request. Plaintiff did so and spoke again to
Lieutenant Jackson who denied plaintiff access to the
records. The same day, plaintiff spoke to attorney Carlton
Williamson at his office making the same request. On July 26,
2016, Williamson stated that he told Chief Jeffrey Rosier to
copy the standard operating procedure manual for plaintiff
and to send plaintiff a copy of the police report. As of
August 12, 2016, plaintiff had been denied his public records
request. Plaintiff alleges that the police report which was
released to him by defendant Kemp shows that the
investigation was closed and cleared by arrest on July 24,
2016. Plaintiff further alleges that the police report
“left out the back description and it clearly defames
plaintiff's character and his private home location as
being the subject matter of a ‘drug scenery'
Whiteville defendants have moved to dismiss plaintiff's
amended complaint in its entirety pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. As the Whiteville
defendants have answered plaintiff's amended complaint,
[DE 29], their motion to dismiss is more properly considered
a motion for judgment on the pleadings. Fed.R.Civ.P. 12(c);
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999). The governing standards of a motion under
12(b)(6) and 12(c) are the same. Id. A Rule 12(b)(6)
motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), “the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff.” Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir.1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). In ruling on a Rule 12(c) motion, the
factual allegations contained in an answer “are taken
as true only where and to the extent they have not been
denied or do not conflict with the complaint.”
Pledger v. N. Carolina Dep't of Health & Human
Servs., Dorothea Dix Hosp., 7 F.Supp.2d 705, 707 (E.D.
Fourth Amendment claim
first claim for relief alleges that defendants Kemp,
Strickland, and Tracey's entry onto plaintiff's
private property constituted an unlawful search as plaintiff
maintained an expectation of privacy in the curtilage
surrounding his home. Plaintiff further alleges that the City
of Whiteville, the Whiteville Police Department, Rosier, and
Jackson are also liable for the Fourth Amendment violation
based on the failure of official policy to demonstrate how to
properly enter onto another person's private property. In
support of his Fourth Amendment claim, plaintiff alleges that
Officer Strickland initiated a traffic stop of Kemp's
vehicle and that Kemp pulled his vehicle onto plaintiff's
private property. Plaintiff alleges that Officers Strickland
and Carter trespassed on his property as they conducted the
traffic stop, and notes that Kemp did not consent to the
search of his vehicle. Plaintiff further alleges that
Officers Carter and Strickland unreasonably searched around
plaintiff's vehicles located in the curtilage of his
home. Officer Strickland has admitted that at times during
the traffic stop he was in the vicinity of other vehicles
parked or located on plaintiff's property. [DE 29 ¶
Fourth Amendment prohibits unreasonable searches and
seizures. U.S. Const. Amend. IV. Its protection against
unreasonable government intrusion extends to “homes and
the land immediately surrounding and associated with homes,
known as curtilage.” Covey v. Assessor of Ohio
Cty., 777 F.3d 186, 192 (4th Cir. 2015) (internal
quotation and citation omitted). Although plaintiff claims
that the officers trespassed the curtilage of his home, mere
trespass by a police officer is insufficient to implicate the
protections of the Fourth Amendment; rather, a trespass must
be accompanied by “an attempt to find something or to
obtain information” to constitute a search under the
Fourth Amendment. United States v. Jones, 565 U.S.
400, 408 n.5 (2012). The only thing or information which
plaintiff sufficiently alleges that the officers sought was
related to the traffic stop and search of Kemp's person
and vehicle. Plaintiff has not alleged that he had any
property interest in Kemp's vehicle and does not have
standing to challenge the stop or search of Kemp's
vehicle or person. See Rakas v. Illinois, 439 U.S.
128, 140 (1978) (standing to challenge a search under the
Fourth Amendment depends on “whether the disputed
search and seizure has infringed an interest of the
[challenger] which the Fourth Amendment was designed to
protect.”); Alderman v. United
States, 394 U.S. 165, 174 (1969) (“Fourth
Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously
asserted”); see also Eiland v. Jackson, 34 F.
App'x 40, 42 (3d Cir. 2002) (“To have standing to
bring a Section 1983 claim alleging the violation of his
property rights under the Fourth Amendment, [plaintiff] must:
(1) assert his own property rights, and (2) allege an injury
in fact.”). Further, “the officers in this case
had a legitimate reason for entering [plaintiff's]
property unconnected with a search of such premise”,
namely, to conduct a traffic stop of Kemp's vehicle.
Alvarez v. Montgomery Cty., 147 F.3d 354, 358 (4th
Cir. 1998) (internal quotations omitted) (citing United
States v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir.
while it is axiomatic that a person's reasonable
expectation of privacy in their home extends to the
curtilage, Florida v. Jardines, 133 S.Ct. 1409, 1414
(2013), and that the curtilage is therefore entitled to the
same level of Fourth Amendment protection as the home,
Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir.
2001), plaintiff's video depicting his front yard and the
police intrusion plainly supports that the area at issue was
not the curtilage of plaintiff's home. Determining
whether an area constitutes the curtilage of a home requires
consideration of four factors: “the proximity of the
area claimed to be curtilage to the home, whether the area is
included within an enclosure surrounding the home, the nature
of the uses to which the area is put, and the steps taken by
the resident to protect the area from observation by people
passing by.” United States v. Dunn, 480 U.S.
294, 301 (1987).
video footage depicts Kemp's vehicle pulling a few feet
into what appears to be plaintiff's driveway and Officer
Strickland's patrol vehicle stopping a few feet behind
Kemp, with the front tires and hood turned into
plaintiff's driveway. The back of the patrol vehicle
appears to remain in the public roadway. There is no fence
surrounding this area and no steps have been taken to
restrict this area from the view of neighbors or people
passing by. Neither officer approaches plaintiff's home
or side or backyard and both remain in or around the driveway
and near the road. The mere posting of “no
trespassing” signs, as plaintiff has alleged are
present, is insufficient alone to implicate heightened Fourth
Amendment protections. See Oliver v. United States,
466 U.S. 170, 180 (1984). Based on the foregoing, the area
where the stop of Kemp's vehicle occurred is not within
the curtilage of plaintiff's home, and plaintiff did not
have a legitimate expectation of privacy therein. Further,
while the video depicts several other vehicles, presumably
belonging to plaintiff, parked in the yard, at no time does
either officer appear to look into or under plaintiff's
vehicles. See Pena v. Porter, 316 Fed.
App'x 303, 313 (4th Cir. 2009) (“A police officer
may enter the curtilage of a home for certain purposes
unconnected with a search, but if police conduct thereafter
exceeds any legitimate reason unconnected with a search of
the curtilage justifying the officer's presence, a Fourth
Amendment violation has occurred.”).
bottom, plaintiff's allegations which he contends support
his Fourth Amendment claim concern the search and seizure of
Kemp and Kemp's vehicle as well as an alleged trespass
committed by police officers when they conducted the stop on
plaintiff's property. These allegations fail to state a
plausible claim for violation of plaintiff's Fourth
Amendment rights. Because plaintiff has failed to
sufficiently allege that Officers Strickland and Carter
violated his Fourth Amendment rights, he cannot state a claim
that the ...