United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. Schroeder United States District Judge
Jason Darnell Mobley brings this action pro se, seeking
damages as a result of his allegedly wrongful arrest.
Defendants Greensboro City Police Department
(“GPD”) and GPD Officers B.D. Estes and T.D.
Brown move to dismiss the complaint on a variety of grounds.
(Doc. 10.) Mobley has filed responsive briefs (Docs. 13,
For the reasons that follow, Defendants' motion will be
granted in part and denied in part.
allegations of Mobley's complaint, which are accepted as
true for purposes of the present motion, lay out the
October 31, 2013, Officers Estes and Brown arrested Mobley,
along with nine other occupants of a hotel room, following a
search that led to the discovery of nine baggies of
marijuana, a scale, and plastic baggies. (Doc. 2 at 2-3.)
Mobley personally had no illegal drugs or paraphernalia on
his person, nor was the hotel room registered in his name.
(Id. at 3.) Mobley seeks $10, 000, 000 in damages
for “false arrest, ” as well as punitive damages.
Defendants now raise various contentions as to why dismissal
is appropriate. Each will be addressed below.
one of Defendants' grounds for dismissal are raised
through Federal Rule of Civil Procedure 12(b)(6). The purpose
of a motion under Rule 12(b)(6) is to “test the
sufficiency of a complaint” and not to “resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In
considering a Rule 12(b)(6) motion, a court “must
accept as true all of the factual allegations contained in
the complaint, ” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam) (citations omitted), and all
reasonable inferences must be drawn in the plaintiff's
favor, Ibarra v. United States, 120 F.3d 472, 474
(4th Cir. 1997). To be facially plausible, a claim must
“plead factual content that allows the court to draw
the reasonable inference that the defendant is liable”
and must demonstrate “more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). While
“the complaint, including all reasonable inferences
therefrom, [is] liberally construed in the plaintiff's
favor, ” Estate of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D.
N.C. 2004) (citing McNair v. Lend Lease Trucks,
Inc., 95 F.3d 325, 327 (4th Cir. 1996)), this
“does not mean that the court can ignore a clear
failure in the pleadings to allege any facts [that] set forth
a claim, ” id. Mere legal conclusions are not
accepted as true, and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
reviewing a pro se complaint, federal courts should examine
carefully the plaintiff's factual allegations, no matter
how inartfully pleaded, to determine whether they could
provide a basis for relief. In addition, in order to
determine whether the claim of a pro se plaintiff can
withstand a motion to dismiss, it is appropriate to look
beyond the face of the complaint to allegations made in any
additional materials filed by the plaintiff.”
Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258 (4th
Cir. 1997) (unpublished table opinion) (citations omitted).
the liberal construction of a pro se plaintiff's pleading
does not require the court to ignore clear defects in
pleading, Bustos v. Chamberlain, No.
3:09-1760-HMH-JRM, 2009 WL 2782238, at *2 (D.S.C. Aug. 27,
2009), or to “conjure up questions never squarely
presented in the complaint, ” Brice v.
Jenkins, 489 F.Supp.2d 538, 541 (E.D. Va. 2007)
(internal quotation marks and citation omitted). Nor does it
require that the court become an advocate for the
unrepresented party. Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Estes argues that he has never been served with process and
thus the complaint against him should be dismissed for
insufficiency of process, pursuant to Federal Rule of Civil
Procedure 12(b)(5), as well as lack of personal jurisdiction
over him, pursuant to Rule 12(b)(2). Mobley responds only
that Estes “is no longer employed by the Greensboro
Police Department and [is] unable to be served.” (Doc.
13 at 3.)
Rules of Civil Procedure 4 and 12(b)(2) and (5) require that
a defendant be properly served with process to bring him
before the court where it can exercise jurisdiction over him.
Here, the U.S. Marshal returned the summons as unexecuted on
March 16, 2017. (Doc. 9 at 2.) Mobley has made no other
effort to serve Estes. Therefore, the court lacks
jurisdiction over him, and the complaint and summons against
him will be dismissed without prejudice.