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Morgan v. Spivey

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

September 29, 2017

RICKY J. SPIVEY, in his individual and official capacities as a Wake County Sheriff's Deputy, Y L. MILLER, in his individual and official capacities as a Wake County Sheriff's Deputy, JOSHUA K. LEGAN, in his individual and official capacities as a Wake County Sheriff's Deputy, DONNIE HARRISON, in his official capacity as Sheriff of Wake County, North Carolina, THE OHIO CASUALTY INSURANCE COMPANY, individually, and as a subsequent subsidiary of LIBERTY MUTUAL INSURANCE COMPANY, as SURETY, Defendants.[1]



         This matter is before the court on defendants Ricky J. Spivey (“Spivey”), Casey L. Miller (“Miller”), Joshua K. Legan (“Legan”), and Donnie Harrison's (“Harrison”) (collectively, “Sheriff Defendants”) motion for partial judgment on the pleadings as to plaintiff's amended complaint and defendant Ohio Casualty Insurance Company's (“Ohio Casualty”) motion to dismiss. (DE 76, 71). The issues raised have been briefed fully and in this posture are ripe for ruling. For the following reasons, the motions before the court are GRANTED IN PART and DENIED IN PART.


         Plaintiff commenced this action against Sheriff Defendants and Wake County, North Carolina on June 10, 2016, alleging various claims against the parties including: negligence, gross negligence, violation of civil rights pursuant to 42 U.S.C. §1983, suit on sheriff's bond, assault and battery, false imprisonment, malicious prosecution, and civil conspiracy. On September 6, 2016, defendant Wake County, North Carolina voluntarily was dismissed. On September 15, 2016, Sheriff Defendants filed a motion for partial judgment on the pleadings, which plaintiff responded to on October 6, 2016, also filing a motion to amend complaint, in order to join Ohio Casualty. On November 14, 2016, this court granted plaintiff's motion to amend and denied as moot Sheriff Defendants' motion for partial judgment on the pleadings. On November 23, 2016, plaintiff filed its amended complaint, alleging:

1) Negligence/gross negligence against defendant Harrison, in his official capacity (first cause of action);
2) Violation of civil rights - 42 U.S.C. § 1983 by defendants Spivey, Miller, and Legan (second cause of action);
3) Suit on Sheriff's Bonds - N.C. Gen. Stat.§§ 162-8 & 58-76-5 (third cause of action);
4) Negligence/gross negligence of defendant Spivey in his individual and official capacities (fourth cause of action);
5) Assault and battery by defendant Spivey in his individual and official capacities (fifth cause of action);
6) Negligence/gross negligence of defendant Miller in his individual and official capacities (sixth cause of action);
7) Assault and battery by defendant Miller in his individual and official capacities (seventh cause of action);
8) Negligence/gross negligence of defendant Legan in his individual and official capacities (eighth cause of action);
9) Acts of malice, acts of corruption, and acts outside the scope of duties (ninth cause of action);
10) False imprisonment by defendants Spivey, Miller, and Legan in their individual and official capacities (tenth cause of action);
11) Malicious prosecution by defendants Spivey, Miller, and Legan (eleventh cause of action);[2]
12) Civil conspiracy by defendants Spivey, Miller, and Legan (twelfth cause of action); and
13) Punitive damages (thirteenth cause of action).

         Currently before the court are two motions: Ohio Casualty's motion to dismiss pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure, filed January 20, 2017, and Sheriff Defendants' motion for partial judgment on the pleadings, as to plaintiff's amended complaint, also pursuant to Rule 12(c), filed February 15, 2017. All defendants assert that plaintiff's claims against Sheriff Defendants in their official capacities and against the suit on sheriff's bond are time barred and that plaintiff's claim of civil conspiracy is not cognizable. Sheriff Defendants additionally assert that certain claims must be dismissed because they are barred by public official immunity and that plaintiff cannot recover punitive damages for actions alleged to be taken by Sheriff Defendants in their official capacities. Ohio Casualty additionally asserts that certain claims must be dismissed because they do not state a claim or, in the case of plaintiff's ninth cause of action alleging acts of malice, the claim is not a cause of action.[3]


         The facts alleged in the complaint may be summarized as follows.

         Plaintiff is the owner and chief operator of Mike's Tree Service, a successful business with multiple employees which provides tree and brush removal services for customers in and around the Wake County area in North Carolina.

         A. Shooting on July 5, 2013

         On July 5, 2015, plaintiff and one of his employees, Charlie Johnson (“Johnson”) were working on a tree and brush removal job for an individual in Apex, North Carolina. The job required plaintiff and his employee to cut down large amounts of tree limbs and brush on the property and then remove the debris from the property in plaintiff's Dodge Ram diesel truck.

         Plaintiff uses his private property, a large field located at 1116 Wimberly Road, as a dumping site for brush and debris for his business, and this lot is marked clearly with “No Trespassing” signs. The field is approximately 300 yards in length, shaped like a long piece of pie, with the south end of the field being the widest part; this southern part is open and flat with over 7, 500 square feet of surface area that can be easily driven on by cars and trucks of all types. There is a dirt roadway down the center of the field from north to south and multiple vehicle entrance points, including three entry points that were often used and were on the day in question open and obvious as entries to or exits from the property.

         The community and Wake County Sheriff's Office, in particular the individual defendants, are aware that the field is plaintiff's and how he uses the field. The deputies from Wake County Sheriff's Office have driven their patrol cars in and out of plaintiff's field on numerous occasions and were familiar with the multiple entrances to the field.

         On the day in question, plaintiff and his employee had dumped several loads on the lot, by the same route, using the northern-most entrance to carefully turn off Wimberly Road, where they would park the truck on the north end of the field to remove debris by hand after removing straps holding the debris in place. During the day, plaintiff, Johnson, and the individual for whom they were working, observed multiple times a patrol car drive by their location. At approximately 7:00 p.m., plaintiff and Johnson were driving toward plaintiff's field with another load and passed defendant Spivey in his patrol car in the opposite lane. Plaintiff saw in his rearview mirror defendant Spivey quickly slowing down and using a side road to turn around. At that time, plaintiff was driving safely and turned into the northern-most entrance carefully, losing no debris.

         Plaintiff and Johnson proceeded to unload the debris in the back of the truck, when defendant Spivey drove by, watching plaintiff and Johnson from the road. Defendant Spivey continued down the road and turned in the southern-most entrance and, using the dirt road that runs through the center of the property, approached plaintiff and Johnson and parked near plaintiff's truck. Once parked, defendant Spivey rolled down his window and yelled for plaintiff to approach the patrol car. When plaintiff did, defendant Spivey asked for and received plaintiff's license through the window of his patrol car.

         Defendant Spivey later told investigators, among others, and testified at plaintiff's criminal trial that plaintiff had been driving carelessly and recklessly in entering his private field, causing tree limbs or debris to fly out of the back of his truck. Defendant Spivey additionally made statements and/or testified that the other reason for his traffic stop of plaintiff was that plaintiff was known to him as someone who had driven on prior occasions without a license or with an expired registration.

         Spivey ran plaintiff's license tag or registration information after initiating the traffic stop. Once Spivey initiated the traffic stop, he informed his dispatcher that he was beginning a routine traffic stop of plaintiff.

         Defendants Miller and Legan heard the communication over their radio system and drove their separate patrol cars at high speeds, through two-lane residential streets, towards defendant Spivey and plaintiff. According to the amended complaint, the dash-cam video of defendant Miller's patrol car during this drive shows defendants Miller and Legan reaching speeds of over 100 miles per hour, with audible tire screeching around curves in the road, and with their patrol cars forcing civilian vehicles off the roadway and onto the shoulder. On numerous occasions, the dashcam video shows the two patrol cars narrowly missing impact with the side panels of several civilian cars by inches as they passed. Allegedly, defendants Miller and Legan sought to force an improper encounter with plaintiff so they could arrest him.

         The dashcam video from defendant Miller's patrol car as he was heading to the scene shows no tree limbs or debris present on the roadway or on the grass shoulder. After arrival, defendants Miller and Legan parked on the shoulder of Wimberly Road and plaintiff's field and approached on foot. At this time, defendant Spivey was still looking up plaintiff's information and/or writing plaintiff a traffic citation. Defendant Spivey directed defendants Miller and Legan to search around plaintiff's truck to see if plaintiff or his employee had thrown out any contraband or evidence. None was found. Defendant Legan additionally opened plaintiff's truck and searched all areas of the truck's cab, consoles, and glove box. Plaintiff called out to defendant Legan that plaintiff did not consent to the search and that defendant Legan could not search without a search warrant. Defendant Legan and/or Miller responded “shut the f*** up” and “when you go to law school you can tell us what we can and cannot do.”

         Johnson approached the vehicle to help locate plaintiff's registration. In response, defendant Legan yelled “Step the f*** back from the vehicle” and again stated that they “did not need permission to search the truck.” No contraband, evidence, or weapons were found.

         At all times plaintiff had remained calm and obedient. Defendant Spivey finished writing a traffic citation to plaintiff for expired registration, driving while license is revoked, and for careless and reckless driving. Plaintiff asked defendant Spivey how he could be charged with careless and reckless driving on his own property. Defendant Spivey stated he would just have to “sort it out in court.” Plaintiff then asked if he was free to go, and defendant Spivey responded yes, telling plaintiff that he was free to leave and was not under arrest.

         Plaintiff told his employee to wait outside plaintiff's truck. Plaintiff then drove safely along the dirt road through the center of his property, and then increased his speed and performed several “fishtails” and “donuts.” Johnson heard one of the Sheriff Defendants say out loud “if he touches the road, he's ours.” Defendant Spivey performed a three-point turnaround and drove to plaintiff's truck, passing an exit that could have been used by Spivey to leave the field. When plaintiff realized that defendant Spivey's car was approaching, plaintiff stopped his truck completely. Defendant Spivey drove within feet of plaintiff's truck. During this time Johnson had walked down the dirt road and was standing less than 20 to 30 feet away.

         Defendant Spivey yelled at plaintiff to move in an aggressive manner. Plaintiff responded “you've got plenty of room.” Allegedly, defendant Spivey had ample room to go around plaintiff's stopped truck and take the southern-most exit off the property or to turn around. Defendant Spivey immediately exited his vehicle in an aggressive manner, extended his baton, and swung twice, hitting plaintiff while still in his truck, both times in the head. Defendant Spivey then reached his hands and arms inside of plaintiff's truck and grabbed plaintiff's body and shirt about the shoulders and neck and began to try to physically pull plaintiff out of the driver's side window. At this time, plaintiff was 5'6” and weighed 150 pounds. Defendant Spivey is larger, over six feet tall.

         From their patrol cars, defendants Legan and Miller watched defendant Spivey strike plaintiff. They then got out of their cars and ran towards plaintiff's truck. Defendant Legan drew his Taser weapon and defendant Miller drew his .357 service pistol. Defendant Miller ran to the passenger window of the truck with his pistol loaded, cocked, and pointed directly at plaintiff. Defendant Legan was directly behind Spivey. Plaintiff's truck was still in the drive gear and his foot was on the brake. As he was being pulled by defendant Spivey, plaintiff's foot came off the brake, and the truck began idling forward.

         As soon as the truck moved, defendant Spivey dropped plaintiff back into the driver's seat where he landed with both hands on the steering wheel, and plaintiff immediately put his foot back on the brake to stop the truck. The moment plaintiff pressed the brake, defendant Miller fired twice, hitting plaintiff both times. The first bullet became lodged in the bones of plaintiff's left leg and the second ripped through plaintiff's hand that was holding onto the steering wheel. After plaintiff watched his three fingers on his right hand explode, he put the truck in park with his left hand, opened his door, and collapsed on the ground, yelling, “I need EMS! I need an ambulance!”

         Johnson called out “where did you shoot him?” Defendant Miller then turned his gun on Johnson, screaming for Johnson to put his hands behind his head and to get on the ground. After Johnson did so, defendant Miller ran to Johnson, rammed his knee into Johnson's back, handcuffed him, and left him lying face-down on the ground. Johnson continued to ask where defendant Miller had shot plaintiff. Defendant Spivey walked around plaintiff's truck and told Johnson, “That's what happens when you play rough with the big dogs.”

         With plaintiff laying on the ground crying and Johnson on the ground handcuffed, defendants Spivey, Miller, and Legan huddled together for several minutes of discussion. They continued to talk privately until other personnel arrived on the scene in response to their radio call that shots had been fired.

         B. After the Shooting on July 5, 2013

         Following the shooting, plaintiff was taken into custody. Defendants Spivey, Miller, and Legan all made statements to investigators, supervisors, other third parties, and in court that plaintiff had tried to hurt or kill defendant Spivey by “flooring” the gas pedal, causing the tires of plaintiff's truck to spin and throw up dirt, and thereby dragging defendant Spivey. The State of North Carolina charged plaintiff with assault with a deadly weapon on a law enforcement officer; assault inflicting serious injury on a law enforcement officer; assault on a law enforcement officer; assault; felony habitual assault; resist, delay, or obstruct a law enforcement officer; and kidnaping a law enforcement officer.

         Plaintiff entered Wake County jail on July 8, 2013, after time at Duke University Medical Center for emergency treatment, and then was transferred to North Carolina Central Prison Hospital the following day for continued care of his hand and knee wounds. Plaintiff was transferred to Craven County Correctional Institution on August 8, 2013. Plaintiff remained incarcerated until he was able to bond out on November 15, 2013, at which time he was released on electronic house arrest.

         While incarcerated, plaintiff was mistreated by prison staff and caretakers on multiple occasions. Plaintiff required medication for his injuries and treatment, and numerous times prison staff mistakenly forced him to take the wrong medication that belonged to another inmate. Plaintiff endured time away from his family, humiliation, fear, anxiety, and sub-standard medical care in the prison system for his severe injuries, including an instance of severe infection in his hand as a result of staff refusing for weeks to change his dressings.

         The events described generated significant publicity. Plaintiff's business thereby suffered and still suffers due to this negative attention.

         C. Trial

         At jury trial, the court dismissed kidnaping charges against plaintiff at the close of the state's evidence. On June 5, 2014, after 30 minutes of deliberation, the jury unanimously found plaintiff not guilty of all remaining charges. Plaintiff remained under house arrest for several weeks following his acquittal. Plaintiff filed this suit on June 10, 2016.


         A. Standard of Review

         A motion to dismiss 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 556. In evaluating the complaint, “[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., Inc., 591 F.3d 250, 255 (4th Cir. 2009).

         Turning to the standard for a motion for judgment on the pleadings, Rule 12(c) allows a party to move for judgment on the pleadings, “[a]fter the pleadings are closed-but early enough not to delay trial . . . .” Fed.R.Civ.P. 12(c). “The standard for Rule 12(c) motions is the same as applied to Rule 12(b)(6) motions, which should only be granted if, ‘accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him ...

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