United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter is before the court on defendant Edgecombe County,
North Carolina's (“Edgecombe County”) motion
to dismiss complaint of plaintiff, proceeding pro se,
pursuant to Federal Rule of Civil Procedure 12(b)(6), for
failure to state a claim upon which relief can be granted.
(DE 15). The motion has been fully briefed and issues raised
are ripe for ruling. For the reasons that follow, Edgecombe
County's motion is granted.
court proceeds here immediately to summary of the facts
alleged in complaint where the case background is a matter of
record. Defendant City of Rocky Mount is a
municipal corporation located within the borders of defendant
Edgecombe County, which also is a municipal corporation. At
all relevant times, defendant Benton Bent
(“Bent”) was a community code supervisor within
the City of Rocky Mount's Public Works and Water
Resources Division, whose duties included inspecting
properties subject to the jurisdiction of the City of Rocky
Mount. Defendant Jonathan L. Boone (“Boone”) is
the director of the City of Rocky Mount's Department of
Public Works and Water Resources, whose duties include
property inspection and supervision of other Department of
Public Works staff.
times relevant to this action, plaintiff was a sixty-seven
year old black male. (DE 4 ¶ 7). Plaintiff lived at 319
Marigold Street, City of Rocky Mount, North Carolina, which
is located within Edgecombe County, North Carolina.
(Id. ¶ 17). Since April 2011, officials from
the City of Rocky Mount's Department of Public Works and
Water Resources, Community Code Division, repeatedly
inspected plaintiff's property and found violations of
the city code including broken interior doors, failure to
replace or remove kitchen cabinets, failure to install new
kitchen appliances, failure to maintain a clean pool room,
failure to replace or remove a kitchen sink, and failure to
paint a hallway. (Id. ¶ 18). Based upon these
findings, plaintiff was assessed civil penalties, which
penalties continually recurred and accumulated on a monthly
basis, until eventually, fees and fines assessed against
plaintiff totaled over $30, 000. (Id. ¶¶
20, 42, 49, 57). Plaintiff was notified that “[c]ivil
penalties will continue until the house has been repaired or
vacated.” (Id. ¶ 20).
2013, defendant City of Rocky Mount declared that an
inoperable travel trailer on plaintiff's property that
plaintiff used to store family heirlooms constituted a public
nuisance, citing in support of that finding that the trailer
blocked public view of plaintiff's property.
(Id. ¶ 5, 20). Eventually, the city decided to
seize the trailer, and defendant Bent appeared at
plaintiff's property August 28, 2013, to effect the
seizure. (Id.). Bent entered the property over
plaintiff's objection and, in a manner not described in
the complaint, began to remove the trailer. (Id.).
During this time, plaintiff attempted to remove his family
heirlooms from the trailer, but, at the direction of Bent,
City of Rocky Mount police officer W.T. Mayfield arrested
plaintiff and placed him in custody at Edgecombe County
Detention Center. (Id.). Plaintiff was charged with
resisting a public officer, but the charges were dismissed.
(Id. ¶ 48).
the foregoing arrest and after accruing significant
additional monthly fines, plaintiff brought this action.
Standard of Review
motion to dismiss for failure to state a claim under Rule
12(b)(6) tests the legal sufficiency of the complaint but
“does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
Republican Party v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992). A complaint states a claim if it contains
“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 (2009) (quoting Bell Atl. Corp v. Twombly, 550
U.S. 544, 570 (2007)). “Asking for plausible grounds .
. . does not impose a probability requirement at the pleading
stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal [the] evidence”
required to prove the claim. Twombly, 550 U.S. at
evaluating the complaint, “[the] court accepts all
well-plead facts as true and construes these facts in the
light most favorable to the plaintiff, “but does not
consider legal conclusions, elements of a cause of action, .
. . bare assertions devoid of further factual enhancement[, ]
. . . unwarranted inferences, unreasonable conclusions, or
arguments.” Nemet Chevrolet Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
must liberally construe pro se complaints, and a “pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). H o w e v e r, c o u r t s “cannot ignore a
clear failure to allege facts” that set forth a
cognizable claim. Johnson v. BAC Home Loan Servicing,
LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011) (citing
Walter v. Dep't of Soc. Servs. for the City of
Baltimore, 901 F.2d 387, 391 (4th Cir. 1990)).
“The ‘special judicial solitude' with which a
district court should view such pro se complaints
does not transform the court into an advocate. Only those
questions which are squarely presented to a court may
properly be addressed.” Walter, 901 F.2d 391.
alleges claims under 42 U.S.C. §§ 1981, 1982, 1983,
& 3604, arising from defendants' alleged racially
motivated gentrification policy and state law claims sounding
in assault, battery, and false imprisonment arising from
plaintiff's August 28, 2013, arrest. Pertinent to the
instant motion, plaintiff names Edgecombe County as a
defendant, which, under North Carolina law, constitutes a
local municipality vested with the police power of the state.
N.C. Gen. Stat. § 153A-121. A municipality or other
local governmental authority is subject to liability for
violation of a plaintiff's constitutional rights
“only when its ‘policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the
[plaintiff's] injury.'” Santos v. Frederick
Cnty. Bd. of Comm'rs, 725 F.3d 451, 469-70 (4th Cir.
2013) (quoting Monell v. Department of Social Services of
City of New York, 436 U.S. 658, ...