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Thorpe v. Barrow

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

August 15, 2017

KELCEY ROSWELL THORPE, Plaintiff,
v.
MARCUS BARROW, SERGEANT GWYNN, D.A. ELLIOTT, and JEFFREY MACIALEK, Defendants.1 KELCEY ROSWELL THORPE, Plaintiff,
v.
MARCUS BARROW, SERGEANT GWYNN, JEFFREY MACIALEK, and D.A. ELLIOTT, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         On 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).[2] 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.

         Plaintiff 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, [3] D.A. Elliott, and Jeffrey Macialek. In all other respects, the motions were denied without prejudice on the basis that amendment would be futile.

         On 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.

         On 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.

         On 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.

         DISCUSSION

         A. Standard of Review

         A 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).

         B. Analysis

         1. Partial Motion to Dismiss

         a. Claims related to ...


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