United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on a motion to dismiss filed by
defendants Estate of Edward W. Grannis and Margaret (Buntie)
Russ. Plaintiff has failed to file a response to the motion,
and, the time for doing so having expired, the motion is ripe
for ruling. For the reasons discussed below, the motion to
dismiss is granted.
a former sergeant with the Spring Lake Police Department,
filed this action in Cumberland County Superior Court seeking
legal and equitable relief under the North Carolina
Constitution, the law and common law of the State of North
Carolina, 42 U.S.C. § 1983, 42 U.S.C. § 1985, and
the United States Constitution from the wrongful acts and
omissions of defendants in causing baseless but serious
criminal charges to be brought against plaintiff. Plaintiff
alleges that as a result of these baseless charges he was
stripped of his badge, arrested, and imprisoned in Central
Prison for a period of approximately ten months, without
cause or justification. All charges against plaintiff were
named the following persons as defendants: the Estate of
Edward Grannis, former District Attorney; Margaret Russ, an
Assistant District Attorney; Cumberland County Sheriff Earl
Butler; Chief Deputy of the Cumberland County Sheriffs Office
Ennis Wright; Michael B. East, Assistant Special Agent in
Charge with the North Carolina State Bureau of Investigation
(SBI); Robin Pendergraft, Director of the SBI; and the
Plaintiffs complaint discusses two instances in 2008 in which
he alleges that while on duty he responded to complaints by
citizens concerning alleged criminal activity promptly and
according to Spring Lake Police Department procedure, and
that such incidents were turned against him by defendants and
used to create charges for which he would never be brought to
trial. Plaintiff was indicted in Cumberland County on May 4,
2009, for felonious breaking and entering/second degree
kidnapping, felonious obstruction of justice/simple assault,
assault with a deadly weapon, assault by pointing a gun,
false imprisonment, and willful failure to discharge duties;
these charges allegedly arose from the two incidents which
plaintiff has identified in his complaint. Plaintiff alleges
that defendants Grannis, Russ, Butler, Wright, East,
Pendergraft, and the SBI, in fact arrested plaintiff in
retaliation for his refusal to assist defendant Grannis and
his network in building criminal cases against a list of
state, county, and local African American officials and
business owners. The criminal charges against plaintiff were
ultimately dismissed by an Assistant District Attorney on
April 15, 2013, nearly four years after plaintiffs
indictment, without meaningful explanation.
removed plaintiffs action to this Court on May 19, 2016,
pursuant to its federal question jurisdiction. 28 U.S.C.
§§ 1331; 1441. Motions to dismiss were filed by two
groups of defendants - the district attorney defendants and
the SBI defendants, while the remaining defendants answered
the complaint. After a hearing on the motions to dismiss, the
Court sua sponte allowed plaintiff an opportunity to
file an amended complaint to provide additional factual
support for his claims and further allowed plaintiff and
opportunity to perfect service on the district attorney
defendants. [DE 50].
filed his amended complaint, and the district attorney
defendants again moved to dismiss. Plaintiff did not file a
response to the motion to dismiss. Since this motion has
become ripe for adjudication, plaintiff filed a motion for
voluntary dismissal of the SBI and Sheriffs Office
defendants, which was allowed. [DE 73].
district attorney defendants have moved to dismiss plaintiffs
claims against them for lack of subject matter jurisdiction
and for failure to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(1);(6). Grannis and Russ have
raised the defenses of Eleventh Amendment immunity, absolute
immunity, and qualified immunity. Federal Rule of Civil
Procedure 12(b)(1) authorizes dismissal of a claim for lack
of subject matter jurisdiction. When subject matter
jurisdiction is challenged, the plaintiff has the burden of
proving jurisdiction to survive the motion. Evans v. B.F.
Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). The
movant's motion to dismiss should be granted if the
material jurisdictional facts are not in dispute and the
movant is entitled to prevail as a matter of law.
Richmond, Fredericksburg & Potomac R.R. Co.
v. United States, 945 F.2d 765, 768 (4th Cir. 1991). 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). Facial plausibility
means that the facts pled "allow the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged, " and mere recitals of the elements
of a cause of action supported by conclusory statements do
not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678
specific allegations in plaintiffs amended complaint relating
to defendants Grannis and Russ are that they were present
when plaintiff entered the office of the Chief of Spring Lake
Police after being summoned there on the day of his arrest,
that Grannis and others offered plaintiff one last
opportunity to cooperate which plaintiff refused, that
Grannis and Russ were present when plaintiff was brought
before the court for his first appearance, and that all
defendants conspired together to arrest plaintiff because
plaintiff refused to assist Grannis and his network of
counterparts in seeking to build criminal cases against a
list of state, county, and local African American officials
and business owners. Amd. Cmp. ¶¶ 26, 39, 55, 111,
and Russ have been named in their individual and official
capacities. State officials sued in their official capacity
for damages are protected by Eleventh Amendment immunity.
Ballenger v. Owens, 352 F.3d 842, 845 (4th Cir.
2003). Claims against North Carolina district attorneys in
their official capacities are plainly claims against state
officials and are barred by the Eleventh Amendment. See
Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006).
As to plaintiffs claims against Grannis and Russ in their
individual capacities, absolute prosecutorial immunity
protects district attorney defendants from liability for
those activities which are traditionally associated with
prosecution of a case. Id. "[I]n initiating a
prosecution and in presenting the State's case, the
prosecutor is immune from a civil suit for damages under
[§] 1983." Imbler v. Pachtman, 424 U.S.
409, 431 (1976); see also State ex rel Jacobs v.
Sherard, 36 N.C.App. 60, 65 (1978). Conspiracy to
present false testimony is further a charge for which a
district attorney would be entitled to absolute immunity.
Carter v. Burch, 34 F.3d 257, 263 (4th Cir. 1994).
Thus, Grannis and Russ are absolutely immune from plaintiffs
claims relating to the actual prosecution of his case.
Although absolute immunity does not extend to activities
outside the scope of traditional prosecutorial functions,
such as administrative and investigatory actions, Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993), plaintiffs
allegations of activities which could be considered to fall
outside the tradition prosecutorial function fail to state a
plausible claim. Although given an opportunity to amend his
complaint, plaintiffs bare assertions of a conspiracy simply
fail to nudge his claims related to Grannis and Russ over the
line from the conceivable to plausible. Twombly, 550
U.S. at 570.
end, Grannis and Russ would further be entitled to qualified
immunity. See Harlow v. Fitzgerald, 457 U.S. 800,
807 (1982). There is a two-step procedure for determining
whether qualified immunity applies which "asks first
whether a constitutional violation occurred and second
whether the right violated was clearly established."
Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010).
Plaintiffs assertions do not sufficiently allege that a
constitutional violation occurred, and qualified immunity
therefore applies. See Eastern Shore Mkts. v. J.D.
Assocs. Ltd., 213 F.3d 175, 180 (4th Cir. 2000) (a court
need not accept as true a plaintiffs "unwarranted
inferences, unreasonable conclusions, or arguments.").
foregoing reasons, the motion to dismiss [DE 61] is GRANTED
and defendants Estate of Grannis and Russ are DISMISSED. As
the remaining defendants have been dismissed by plaintiff,
the motion to compel [DE 70] ...