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Lee v. City of Fayetteville

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

May 24, 2017

GREGORY MAURICE LEE, by and through his Guardian, Linda Shelton, Plaintiff,


          LOUISE W. FLANAGAN United States District Judge.

         This matter is before the court defendants' motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 41(b). (DE 16). Plaintiff responded and defendants replied. On December 2, 2016, the court provided the parties notice that intended to convert the motion into one for summary judgment, and directed further briefing. Plaintiff filed a response in opposition to summary judgment and defendants replied. For the following reasons, defendants' motion, converted to one for summary judgment, is granted.


         Plaintiff filed this action on August 19, 2016, asserting claims under 42 U.S.C. § 1983 and state tort law, arising from alleged use of excessive force by unnamed John Does, who allegedly are members of the police department of defendant City of Fayetteville (“Fayetteville”), in an incident taking place on November 13, 2012. Defendants filed the instant motion on September 12, 2016, seeking dismissal under Rule 12(b)(6) on the basis that claims against defendants are barred by statute of limitations. In the alternative, defendants argue that plaintiff is barred from bringing the instant claims against John Does, under Rule 41(b), due to the court's prior dismissal of claims against John Does in a previous action asserting nearly identical claims, Lee v. City of Fayetteville, et al., No. 5:15-CV-638-FL (E.D. N.C. ) (“Lee I”). In Lee I, the court entered judgment on August 4, 2016, dismissing the case “without prejudice.” (DE 38).

         Plaintiff responded to the instant motion on September 30, 2016, asserting inter alia that the statute of limitations was tolled until a general guardian was appointed on his behalf on January 19, 2016. Plaintiff attached to his response, in addition to documents from Lee I, a state court document titled “Letters of Appointment General Guardian, ” dated January 19, 2016. (DE 19-2). Defendants replied on October 13, 2016, asserting inter alia that plaintiff is not entitled to tolling of the statute of limitations. Defendants attached to their reply, in addition to documents from Lee I, state court documents and correspondence related to guardians acting on behalf of plaintiff, as well as an authenticating affidavit. (DE 20-1 to 20-5).

         On December 2, 2016, the court analyzed the issues raised by defendants' motion to dismiss. The court first rejected defendants' arguments that Rule 41(b) provides an independent basis for dismissal of claims against John Does. Turning to defendants' statute of limitations defense, the court noted that the parties had introduced documents outside of the pleadings bearing on the issue of tolling of the limitations period. Therefore, the court provided notice to the parties that it would treat defendants' motion to dismiss as one for summary judgment, and the court gave the parties an opportunity to “present all the material that is pertinent to the statute of limitations defense raised by defendants' motion.” (DE 21 at 8-9). The court also previewed several issues raised by the defendants' arguments.

         Plaintiff filed a memorandum of law in opposition to summary judgment on December 22, 2016. Plaintiff attaches thereto 1) letters of appointment of general guardian, dated January 19, 2016, and related state court documents; and 2) a copy of a verified complaint filed in Lee I. In reply in support of summary judgment, in addition to referencing documents previously filed, defendant attaches 1) an affidavit of Diana Engel (“Engel”), a forensic technician with the City of Fayetteville police department, with attached police report; and 2) an affidavit of Michael Hardin (“Hardin”), an officer with the police department, with an attached police report.


         As pertinent to the instant motion, the undisputed facts and disputed facts viewed in the light most favorable to plaintiff may be summarized as follows. Early in the morning of November 13, 2012, Fayetteville police officers responded to the scene of a reported break-in at the Body-Tapp Gentlemen's Club in Fayetteville. Unnamed police officers apprehended plaintiff at the scene, and during the course of such apprehension plaintiff “sustained a head injury.” (Hardin Aff., ¶ 5; Case Supplemental Report (DE 23-2) at 4).[1]

         Prior to 7:10 a.m., plaintiff was transported to Cape Fear Valley Medical Center for medical treatment. (Engle Aff., Case Supplemental Report (DE 23-1) at 4). Engel arrived on the scene of Body-Tapp Gentlemen's Club at 7:10 a.m. and took photographs of the scene and lifted fingerprints. (Id. at 4-5). Engel left the scene at 7:58 a.m., and proceeded to Cape Fear Valley Medical Center, where she made contact with another officer at 8:12 a.m., who reported that plaintiff was located in Room 39 in the emergency department of the hospital. (Id. at 6). In her Case Supplemental Report, Engel noted that at that time:

Contact was made with the suspect, [plaintiff]. [Plaintiff] who [sic] was lying on a bed in the room with a neck brace on; he was coherent and talking. [Plaintiff] was wearing a hospital gown and covered with a sheet. Abrasion type wounds were noted to his left hand and right knee. An abrasion type wound was also noted under and above his left eye.

(Id.). According to Engel:

It is important that I note in my report whether the subject did speak with me. If I note that a suspect spoke with me, I make a note of that fact to protect against future claims that I failed to document an injury. If the subject is unconscious or otherwise unresponsive I make a note of this as well.

         (Engel Aff. ¶ 11). Engel left plaintiff's room at Cape Fear Valley Medical Center at 8:45 a.m. (Engle Aff., Case Supplemental Report (DE 23-1) at 6).

         Hardin arrived at Cape Fear Valley Medical Center at 9:30 a.m., and in his Case Supplemental Report, Hardin states:

I . . . spoke with E.R. Physician SETZER. SETZER advised serious head injury had been sustained and there was hemorrhage. I noted that suspect was alert, responsive, and communicating with doctors. I then departed [Cape Fear Valley Medical Center].

         (Hardin Aff., Case Supplemental Report (DE 23-2) at 4). Hardin received a report from another officer at 1:15 p.m. that plaintiff “would be flown to UNC Hospital in Chapel Hill due to the nature of his injuries.” (Id.). The next day, November 14, 2012, Hardin was advised that plaintiff “was still in critical condition.” (Id. at 5).

         On January 31, 2013, Linda Shelton (“Shelton”), plaintiff's sister, filed a verified petition for adjudication of incompetence and application for appointment of guardian or limited guardian in the Superior Court of Orange County, North Carolina. (DE 20-3). In the application, Shelton states that plaintiff is a patient at UNC Hospitals, and that he lacks sufficient capacity to manage his own affairs or to make or communicate important decisions concerning his person, family or property, on the basis of the following:

Respondent was severely beaten and sustained head injuries in his beating. He has suffered significant brain damage, has undergone multiple surgeries, and has remained hospitalized since November 13, 2012. When he attempts to speak he mumbles incomprehensibly. This mumbling is punctuated with English words or phrases that appear out of context. He is unable to provide responsive answers to questions and primarily responds to questions such as ‘do you know where you are?' with ‘mmmkay.' Respondent frequently refuses to eat. He is physically uncooperative with nurses and doctors and has violent outbursts. Respondent is confined in a cage-like mesh inclosure surrounding his bed that prevents him from hurting himself or others.

         (DE 20-3 at 3). That same date, the Orange County Superior Court set hearing on incompetence to be held February 20, 2013. (Id. at 15). On February 20, 2013, Orange County Superior Court adjudged plaintiff incompetent and ordered that a guardian be appointed by the court. (DE 20-3 at 14). That same date, Shelton filed a verified application for letters of “guardianship of the person, ” and she signed an “oath of fiduciary.” (DE 20-3 at 11, 13). That same date, the Orange County Superior Court issued letters of appointment to Shelton, appointing her as “Guardian of the Person” of plaintiff. (Id. at 10).

         On March 17, 2014, attorney Jerry Braswell sent a letter to city attorney for the City of Fayetteville stating “[o]ur office has been retained to represent Gregory Lee who was seriously injured in an altercation with officers of the Fayetteville Police Department, . . . . on or about 18 [sic] November 2012, ” and requesting an internal investigation report. (DE 20-2).

         On October 14, 2015, Shelton filed a verified motion to modify guardianship, in Superior Court of Cumberland County, North Carolina. Therein she requests as follows:

Movant be appointed general guardian so that she can bring legal action on behalf of the Ward [plaintiff]. [Plaintiff] was seriously injured by police officers when he was apprehended for alledgelly [sic] breaking into and entering a store although he was never charged. A civil lawsuit will be filed against the City of Fayetteville. Erika Walker was a female friend of [plaintiff] and since the incident she has had no contact with [plaintiff] or his family. She has not visited [plaintiff] nor provided him with any care or assistance.

         (DE 20-3 at 8). On November 3, 2015, Sharon A. Keyes, guardian ad litem for plaintiff, filed a response to the motion to modify, stating:

Linda Shelton, sister of the ward, makes this motion to modify the guardian of the person to general guardian in order to pursue a lawsuit on behalf of the ward. Linda Shelton has acted as her brother's guardian since 2013. Although I did not meet with [plaintiff], as he was living in a facility in Catawba County, North Carolina, I was able to speak with the Administrator of the facility. She reported that Mr. Lee was nonverbal and unable to understand conversation directed to him. . . . I attempted to speak with other family members prior to the hearing but was not able to contact them. Mrs. Shelton presented as a caring family member and has served as [plaintiff's] guardian without incident since 2013. . . .

         (DE 20-3 at 22).

         On November 9, 2015, the Superior Court of Cumberland County appointed Shelton “General Guardian” for plaintiff, “upon proper qualification, sufficient bonding and application.” (DE 20-3 at 19). The order stated the following findings of fact:

1. That [plaintiff] was seriously injured in an altercation with the Fayetteville police ...

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