United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' partial motion
to dismiss (DE 56) and plaintiff's motion to proceed (DE
61). The issues raised have been fully briefed and are ripe
for adjudication. For the following reasons, this court
grants in part and denies in part defendants' motion and
denies as moot plaintiff's motion.
January 15, 2015, plaintiff filed this action, pro
se, pursuant to 42 U.S.C. § 1983. On July 22, 2015,
this court conducted a frivolity review pursuant to 28 U.S.C.
§ 1915. This court determined that plaintiff's claim
based on illegal arrest and incarceration was barred by
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(holding that a state prisoner may not maintain a § 1983
action for damages for an allegedly unconstitutional
conviction without first showing his conviction or sentence
has been reversed, expunged, declared invalid, or otherwise
called into question). T h i s court allowed plaintiff's
excessive force claim to proceed. The John Doe defendants,
described with only “vague descriptions, ” were
dismissed without prejudice. Plaintiff's action against
defendant Marcus Barrow, because it was based on a theory of
respondeat superior, was dismissed without
prejudice. Plaintiff was allowed to proceed with his
excessive force claim against the remaining defendants.
filed several motions to amend his complaint. On April 6,
2016, this court granted the motions to the extent that they
elaborated on plaintiff's excessive force claim against
Sergeant Gwynn,  D.A. Elliott, and Jeffrey Macialek. In all
other respects, the motions were denied without prejudice on
the basis that amendment would be futile.
November 15, 2016, this court, sua sponte, addressed
the following actions pursuant to Federal Rule of Civil
Procedure 42(a): Thorpe v. Barrow, No.
5:15-CT-3016-FL (E.D. N.C. filed on Jan. 15, 2015)
(“Thorpe I”) and Thorpe v. Barrow, No.
5:15-CV-511-FL (E.D. N.C. filed on September 29, 2015)
(“Thorpe II”). This court granted plaintiff's
Federal Rule of Civil Procedure 59(e) motion with respect to
Thorpe II, vacated its prior judgment, and directed
the Clerk of Court to reopen the case. Due to the
“substantial similarity” of plaintiff's
claims challenging the legality of his arrest and
incarceration, as asserted in Thorpe I and
Thorpe II, this court reinstated the claims in both
cases. This court consolidated Thorpe I and
Thorpe II, directed that all future filings bear
both captions, and directed that all future docket entries be
docketed in the lead case, Thorpe I. Plaintiff was
directed to particularize this action and file one
amended complaint, in Thorpe I, within 14 days.
Plaintiff was advised that this court would conduct a review
of the amended complaint, pursuant to 28 U.S.C. §
1915(e)(2)(B), once it was filed.
November 29, 2016, plaintiff filed his amended complaint. On
December 7, 2016, this court conducted a frivolity review of
plaintiff's amended complaint pursuant to 28 U.S.C.
§ 1915. Former defendant E. N. Bagshawe, the attorney
who represented plaintiff during his state criminal
proceedings, was dismissed without prejudice because
plaintiff failed to allege facts tending to establish that he
was a state actor. With respect to former defendants Michael
Waters and Melissa D. Pelfrey, the state prosecutors involved
with plaintiff's state criminal proceedings, they were
dismissed without prejudice because plaintiff's claims
were barred by the doctrine of prosecutorial immunity.
Plaintiff's claims against former defendant John Doe
Police Officers were dismissed without prejudice. Plaintiff
was allowed to proceed on his claims against defendants
Marcus Barrow, Sergeant Gwynn, D.A. Elliott, and Jeffrey
Macialek for unreasonable seizure and false imprisonment, in
violation of the Fourth Amendment to the United States
Constitution, and excessive force, in violation of the Fourth
and/or Fourteenth Amendment.
December 21, 2016, defendants filed the instant motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, seeking to dismiss the following: 1)
plaintiff's § 1983 claims related to his arrest and
incarceration, 2) all of plaintiff's claims against
defendant Marcus Barrow, and 3) plaintiff's state law
claims. Plaintiff filed a responded in opposition. On January
5, 2017, plaintiff filed his motion to proceed. Defendants
responded in opposition.
Standard of Review
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) determines only whether a claim is stated; “it
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 claim is stated if the complaint 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 Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In evaluating whether a claim is
stated, “[the] court accepts all well-pled 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.
2009) (citations omitted). In other words, this plausibility
standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that plaintiff has stated a
claim that makes it plausible he is entitled to relief.
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (internal quotations omitted). On a motion to dismiss
pursuant to Rule 12(b)(6), courts “may properly take
judicial notice of matters of public record.”
Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009).
Partial Motion to Dismiss
Claims related to ...