United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendants' partial
motions to dismiss certain claims in plaintiffs'
complaints. The appropriate responses have been
filed, and the motions are ripe for ruling. A
hearing was held before the undersigned on February 23, 2017,
at Raleigh, North Carolina and, for the reasons discussed
below, defendants' motions are granted in part and denied
November 10, 2013, plaintiffs were riding in a car driven by
Mitchell Shane Garner on North Carolina Highway 421 North,
heading toward the town of Lillington in Harnett County,
North Carolina. Garner drove through a purported checkpoint
that Lillington Police Department Officers David Kirkland and
Soonaoso Letuli were attempting to conduct. Plaintiffs
contend there were numerous problems with the execution of
the checkpoint. When Garner drove through, Kirkland and
Letuli began pursuing his vehicle at a high rate of speed
down Neill's Creek Road. Plaintiffs contend the manner of
the chase rendered Garner with no safe way to stop the car.
Plaintiffs also contend the officers may have made contact
with the rear of Garner's vehicle. Either way,
Garner's vehicle crashed into a tree, causing serious
injuries to plaintiffs Autumn Zimmer and Marina Troyano.
These cases are companion cases to an earlier filed action by
the Estate of Austin Ferrell, No. 5:15-CV-677-BO (E.D.N.C);
Austin Ferrell was also a passenger in Garner's vehicle
and was killed as a result of the collision.
12(b)(6) motion to dismiss for failure to state a claim for
which relief can be granted challenges the legal sufficiency
of a plaintiff s complaint. Francis v. Giacomelli,
588 F.3d 186, 192 (4th Cir. 2009). When ruling on the motion,
the court "must accept as true all of the factual
allegations contained in the complaint." Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although
complete and detailed factual allegations are not required,
"a plaintiffs obligation to provide the
'grounds' of his 'entitle[ment] to relief
requires more than labels and conclusions."
Twombly, 550 U.S. at 555 (citations omitted).
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555). Similarly,
a court need not accept as true a plaintiffs
"unwarranted inferences, unreasonable conclusions, or
arguments." Eastern Shore Mkts. v. J.D. Assocs.
Ltd., 213 F.3d 175, 180 (4th Cir. 2000). A trial court
is "not bound to accept as true a legal conclusion
couched as a factual allegation." Twombly, 550
U.S. at 555.
Zimmer and Troyano plaintiffs bring claims for assault and
battery, gross negligence, violations their Fourth, Fifth,
Sixth, and Fourteenth Amendment rights under 42 U.S.C. §
1983, and damages for personal injuries. In their motions to
dismiss, defendants seek dismissal of plaintiffs' §
1983 claims against the Town of Lillington for failure to
allege a plausible claim based on a theory of municipal
policy or custom, dismissal of all claims against Kirkland
and Letuli in their official capacities as duplicative of the
claims against the Town, and dismissal of all claims against
Kirkland and Letuli in their individual capacities for
failure to plead sufficient acts. Defendants do not seek
dismissal of plaintiffs' § 1983 claims against the
Town of Lillington for the conduct of Kirkland and Letuli in
their official capacity or the assault and battery and gross
negligence claims against the Town of Lillington.
noted by plaintiffs, the facts and claims alleged are nearly
identical in all three companion cases, and this Court has
previously considered defendants' Rule 12(b)(6) challenge
to the pleadings and denied in substantial part their
motion. See Ferrell v. Town of
Lillington, No. 5:15-CV-677-BO (E.D. N.C. June 13,
2016). Accordingly, the Court ADOPTS its holding in the
Ferrell case insofar as it applies to the claims
raised in these cases and incorporates its discussion
provided in the Ferrell order as if fully set out
herein. The single argument identified by defendants at the
hearing as not having been raised in their Ferrell
motion relates to the sufficiency of the individual capacity
claims against Kirkland and Letuli. Specifically, defendants
argue that in order to be found individually liable
plaintiffs must and have failed to sufficiently allege that
Kirkland and Letuli acted outside the scope of their official
duties or that their conduct was malicious or corrupt.
Court finds that at this stage of the proceedings
plaintiffs' complaints allege sufficient facts to state
claims for relief against Kirkland and Letuli in their
individual capacities. The conduct complained of is
sufficient to put defendants on notice that plaintiffs'
allegations of wanton and reckless conduct, which arguably
fell outside the scope of defendants' official duties,
leads plaintiffs to seek recovery from not only the Town but
also from defendants Kirkland and Letuli directly. See,
e.g. Cmp. ¶¶ 24-25; see also Meyer v.
Walls, 347 N.C. 97, 110 (1997) ("The crucial
question for determining whether a defendant is sued in an
individual or official capacity is the nature of the relief
sought, not the nature of the act or omission alleged.")
(citation omitted). Accordingly, plaintiffs may proceed with
their individual capacity claims, leaving to be resolved at a
later date whether qualified or public officer immunity
applies. Stewart v. North Carolina, 393 F.3d 484,
491 (4th Cir. 2005).
foregoing reasons, the partial motions to dismiss are GRANTED
IN PART AND DENIED IN PART. [DE 18 in Zimmer and DE
16 in Troyano]. The following claims in
plaintiffs' complaints remain: assault and battery, gross
negligence, and § 1983 claims against the Town of
Lillington both for the conduct of Kirkland and Letuli and
for municipal policy or custom. Plaintiffs' claims
against Kirkland and Letuli in their individual capacities
may also proceed. The claims against Kirkland and Letuli in
their official capacities are DISMISSED as duplicative of
plaintiffs' claims against the Town of Lillington.
parties are further DIRECTED to confer and present to the
Court not later than April 17, 2017, a plan for consolidation
and management of all pending cases in this Court arising
from this incident.