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Jordan v. Fayetteville Metropolitan Housing Authority Board

United States District Court, E.D. North Carolina, Western Division

March 30, 2017

FELICIA RENEE JORDAN, Administratrix for the Estate of Ravon D. Jordan, Plaintiff,
v.
FAYETTEVILLE METROPOLITAN HOUSING AUTHORITY BOARD, DAWN DRIGGERS, both individually and in her official capacity as Executive Director of Fayetteville Metropolitan Housing Authority, THE ESTATE OF SHARION B. HAIR, A'SHANTE JANELLE OWENS, and KATHLEEN CARTER, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court upon motion to dismiss for failure to state a claim filed by defendants Fayetteville Metropolitan Housing Authority Board (“Board”) and Dawn Driggers (“Driggers”) (DE 27), and motion to dismiss for improper service and process of service filed by defendant Estate of Sharion Hair (“Estate”). (DE 24). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert T. Numbers, II, issued a memorandum and recommendation (M&R”), wherein it is recommended that the court grant defendants' motions. Plaintiff timely objected to the M&R. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the magistrate judge and grants defendants' motions.

         BACKGROUND

         Plaintiff initiated this action on June 20, 2016, in Cumberland County Superior Court, as administratrix for the estate of Ravon D. Jordan (“Jordan”), asserting claims arising out of a shootout that occurred on the property of Sharion Hair (“Hair”). Jordan allegedly died from injuries sustained during the shooting. Plaintiff seeks compensatory and punitive damages, as well as trial by jury.

         Plaintiff makes claims under 42 U.S.C. § 1983 against defendants Board and Driggers, in her individual and official capacities, alleging deprivations of Jordan's constitutional rights. Plaintiff also asserts state law negligence claims[1] against defendants Estate, [2] A'Shante Owen (“Owens”), and Kathleen Carter (“Carter”).[3]

         Defendants Board and Driggers timely removed the action on July 27, 2016, invoking this court's jurisdiction under 28 U.S.C. §§ 1331, 1441, and 1446.[4] On August 26, 2016, defendant Estate answered plaintiff's complaint and filed the instant motion to dismiss claims against it for insufficient service of process. Shortly thereafter, on August 31, 2016, defendants Board and Driggers filed the instant motion to dismiss claims against them for failure to state a claim, lack of jurisdiction, and insufficient service of process.

         On October 24, 2016, the court directed plaintiff to confirm the status of the action against defendants Owens and Carter, where service on those defendants remained outstanding. In response, plaintiff filed two separate affidavits of non-service on Carter and Owens, respectively. (DE 37, 38).[5]

         The magistrate judge entered an M&R on February 24, 2017. The M&R recommends granting defendant Estate's motion to dismiss on the basis that plaintiff failed to serve the Estate's personal representative. The M&R also recommends granting defendants Board and Driggers's motion on the grounds that plaintiff fails to allege deprivation of a specific constitutional right. Plaintiff timely filed objections to the M&R.

         STATEMENT OF FACTS

         The facts alleged in plaintiff's complaint are summarized as follows. The Fayetteville Metropolitan Housing Authority (“FMHA”) is a public housing authority organized under Chapter 57 of the North Carolina General Statutes. Its purpose is to provide low-cost housing to families with low to moderate income. Defendant Board owns, manages, and administers public housing programs, including housing voucher programs under 42 U.S.C. § 1437f (“Section 8”).[6] (DE 1-2 ¶ 7). At all times relevant to this action, defendant Driggers was the Executive Director of the FMHA. (Id. ¶ 11).

         According to plaintiff, the FMHA contracted with Hair, to use Hair's property, located at 1522 Grandview Drive in Fayetteville, North Carolina (the “Grandview house”), as rental property for low income families under the Section 8 program. (Id. ¶ 14). Pursuant to this contract, defendant Board leased the Grandview house to defendant Carter. (Id. ¶ 15). The lease agreement between defendants Carter and Board required defendant Carter to comply with certain terms and conditions. (Id. ¶ 16). In particular, the agreement prohibited the use of alcohol, drugs, or weapons on the property and required Carter to live on the property as a permanent resident. (Id. ¶ 17). In contravention of this agreement, Carter leased the Grandview house to defendant Owens. (Id. ¶¶ 20, 22).

         On June 22, 2014, defendant Owens held a party at the Grandview house. (Id. ¶ 23). During the course of this party, individuals became disruptive and rowdy. (Id. ¶ 24). Law enforcement showed up at the house several times on June 22, 2014, to address complaints regarding disturbances that erupted during the party. (Id. ¶ 26). According to plaintiff, defendant Owens frequently held large and unruly parties at the Grandview house. (Id. ¶ 28). Neighbors lodged several complaints about these parties with Hair and defendants Board and Driggers. (Id. ¶ 30).

         Jordan attended the party at the Grandview house on June 22, 2014. (Id. ¶ 32). While Jordan was at the party, unknown assailants engaged in a shootout. (Id. ¶ 33). During the course of the shootout, Jordan was shot. (Id. ΒΆ 35). Jordan subsequently ...


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